Arnab Judgment Comes Good in Zubair Bail Order, But Has it Helped Others Too?

If the Arnab judgment was the ‘Alice in Wonderland’ of Articles 19 and 21, Zubair's is ‘Through the Looking Glass’.

As the Supreme Court placed reliance upon its Arnab Goswami judgment from 2020, in its more recent judgment granting interim bail to Alt-News Muhammed Zubair, one couldn’t help but recall that summer afternoon when Goswami, a famous TV news anchor, was given bail in an abetment to suicide case.

(Image: The Quint)

As the Supreme Court placed reliance upon its Arnab Goswami judgment from 2020, in its more recent judgment granting interim bail to Alt-News co-founder Muhammed Zubair, one couldn’t help but recall that summer afternoon when Goswami, a famous TV news anchor, was given bail in an abetment to suicide case.

The entire country seemed to have erupted in applause for a wide variety of reasons, but more importantly several lawyers and legal commentators across the country celebrated the judgment as a win for press freedom and civil liberty. And rightfully so —

Because, the Supreme Court, had in one swift stroke reiterated the Arnesh Kumar guidelines advocating restraint in arrests, upheld civil liberty and advocated press freedom.

Sample these statements from the top court's judgment releasing the Republic editor:

• “…it is the duty of courts across the spectrum – the district judiciary, the High Courts and the Supreme Court – to ensure that the criminal law does not become a weapon for the selective harassment of citizens”

• “Courts should be alive to both ends of the spectrum – the need to ensure the proper enforcement of criminal law on the one hand and the need, on the other, of ensuring that the law does not become a ruse for targeted harassment”

• “Our courts must ensure that they continue to remain the first line of defense against the deprivation of the liberty of citizens. Deprivation of liberty even for a single day is one day too many”

• “India’s freedoms will rest safe as long as journalists can speak truth to power without being chilled by a threat of reprisal”

• “…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”

Naturally, what followed must have been an instant curtailment of indiscriminate arrests across the country, magistrates taking such transgressions by law enforcement authorities seriously, journalists being able to write and report freely without being inundated by court cases and each individual being allowed professional freedom, right?

Wrong.

Justices DY Chandrachud, Hemant Gupta and Ajay Rastogi’s Arnab Goswami judgment went on to join Arnesh Kumar in the long list of landmark pronouncements that magistrates and law-enforcement agencies tend to forget. Some recent examples to illustrate this argument?

Cases Where Arnab Goswami Judgment Could've Applied, But Didn't

From Uttar Pradesh to Kashmir, from Siddique Kappan to Sajad Gul, we have several journalists across the country PRESENTLY languishing in jails in a wide array of cases, including those under the Unlawful Activities Prevention Act.

Just last month, within twenty-four hours of the Supreme Court casting far reaching aspersions about there being a “devious stratagem” indicated by a plea before them, and hours after Home Minister Amit Shah’s disparaging remarks, an activist and petitioner number two in that plea, Teesta Setalvad was picked up the Gujarat crime branch from her home in Mumbai.

The FIR on the basis of which Seetalvad was detained, quotes heavily, amid a barrage of seeming conjectures, from the Supreme Court judgment in the case, even though the Supreme Court had not directly named Setalvad their contentious remarks.

Incidentally, the plea, filed primarily by Zakia Jafri, whose husband Ehsaan Jafri was killed in the riots, had challenged a Special Investigation Team's report which gave a clean chit to Prime Minister (and former Gujarat CM) Narendra Modi and several others in the 2002 riots.

Setalvad, Jafri’s co-petitioner was arrested along with two-others, under Sections 468 (forgery for purpose of cheating) and 194 (giving or fabricating false evidence with intent to procure conviction for capital offence) of the Indian Penal Code.

On Tuesday, a Gujarat court deferred passing an order in Setalvad’s bail plea till Thursday. The Supreme Court had said in the Arnab Goswami judgment: “Deprivation of liberty even for a single day is one day too many.” Setalvad has been behind bars for over a month.

Similarly, in complete violation of the Arnesh Kumar guidelines, the Arnab Goswami judgment and Article 19 of the Constitution of India, comedian Munawar Faruqui was kept behind bars for weeks on end until the Supreme Court finally stepped in and ensured his release. His colleague Nalin Yadav, spent even longer even for nothing more than supporting Faruqui.

Muhammad Zubair was just the most recent example of the Indian authorities' zealotry to arrest dissenters — a fact-checker dragged into a complicated jangle of cases, all for his tweets, all pertaining the same subject matter, all riddled with large gaping holes.

Zubair's Case — A Successor to Arnab's

If the Supreme Court had not emphatically ensured his interim release and advocated his liberty, Zubair would still be behind bars, with the courts in Uttar Pradesh not exactly likely to stand up for liberty.

If not behind bars, he would perhaps at least be banned from tweeting — a vacation bench of the Supreme Court had imposed that condition while granting interim bail to him in one of the cases against him.

But this regular bench of the Supreme Court was having none of it. Not only did they give interim bail to Zubair, transfer all the cases to Delhi to be investigated collectively, spare him undue rounds of several courts in several states, uphold his right to tweet and write, but they also, in their judgment, reaffirmed what they had said in the Arnab Goswami case:

“Criminal law and its processes ought not to be instrumentalised as a tool of harassment.”

They also unambiguously noted: "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.”

Further, according to them: “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.”

And Yet...

If the Arnab Goswami judgment was the ‘Alice in Wonderland’ of Articles 19 and 21 of the constitution, the Mohammed Zubair judgment (with Justice DY Chandrachud incidentally being on the bench in both cases) is ‘Through the Looking Glass’.

While both seem so similar in theme and in what they say, the latter would perhaps not exist if it were not for the former. And yet, it remains unclear why Zubair’s appears to be the first such case of an independent journalist actually benefitting from the Arnab Goswami judgment.

I mean, let us recall how many journalists have been slapped with FIRs and arrested in recent times.

For some, like Kashmir-wala editor Fahad Shah, the manner in which arrests have taken place and the proceedings have unfolded mirror that of Zubair — first summoned, then arrested in one FIR, then arrested in another just as he was about to clinch bail in one, then booked in a cascade of cases with new charges being added on top of one another like layers in a cake, mostly for exercising their freedom of expression and their right to report. And Fahad Shah is still behind bars.

A natural question that emanates from all these reports about incarcerated reporters is: if it weren’t for one Supreme Court judge being common in both his and Goswami’s case, would Zubair even have got bail? Or, would the top court, like all other courts who had adjudicated his cases, then have forgotten the values espoused by the top court while according liberty to Arnab Goswami —

That the process must never become the punishment. That the need to ensure that law does not become a ruse for targeted harassment is as important as the need to ensure proper enforcement of criminal law.

And that liberty really truly is “not a gift for the few.”