'Bail Conditions Should Be Proportionate' : Supreme Court Says Blanket Order Restricting Zubair From Tweeting Is Unjustified

In the plea filed by ALT News co-founder, Mohammed Zubair, inter alia, seeking quashing of a slew of FIRs filed by the UP Police, a Bench comprising Justices D.Y. Chandrachud, Surya Kant and A.S. Bopanna had decided to enlarge him on bail. Senior Advocate, Ms. Garima Prasad appearing on behalf of the State of U.P. implored the Bench to bar Zubair from tweeting while he was out on bail. In this regard, citing the judgment in Parvez Noordin Lokhanwalla v. State of Maharashtra, the Bench highlighted that bail conditions cannot be disproportionate to its purpose. It added, the right to dignity and other constitutional safeguard cannot be made illusory by imposing disproportionate bail conditions.

"The bail conditions imposed by the Court must not only have a nexus to the purpose that they seek to serve but must also be proportional to the purpose of imposing them. The courts while imposing bail conditions must balance the liberty of the accused and the necessity of a fair trial. While doing so, conditions that would result in the deprivation of rights and liberties must be eschewed".

The Bench stated that restraining Zubair from tweeting would be in the nature of passing gag orders, which have 'a chilling effect on the freedom of speech'. It observed -

"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 Bench added that asking a journalist to refrain from using their medium of communication would be in violation of their right to speech and expressions, as well as, the freedom to practice his profession -

"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."

Case Title : Mohammed Zubair vs State of NCT of Delhi and others

Citation : 2022 LiveLaw (SC) 629

Headnotes

Code of Criminal Procedure - Power of Arrest - Section 41- Police officers have a duty to apply their mind to the case before them and ensure that the condition(s) in Section 41 are met before they conduct an arrest - Supreme Court reiterates the guidelines for arrest laid down in the 2014 Arnesh Kumar vs State of Bihar (2014) 8 SCC 273 [Para 27, 28]

Constitution of India - Article 21- Personal Liberty and power of arrest- 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. 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 [Para 27, 28]

Code of Criminal Procedure - Section 439(2) - Bail conditions-The bail conditions imposed by the Court must not only have a nexus to the purpose that they seek to serve but must also be proportional to the purpose of imposing them. The courts while imposing bail conditions must balance the liberty of the accused and the necessity of a fair trial. While doing so, conditions that would result in the deprivation of rights and liberties must be eschewed [ Para 29]

Constitiution of India - Article 19(1)(a) - Freedom of speech and expression - Mohammed Zubair Case- Blanket bail orders to prevent the petitoner from tweeting cannot be imposed, merely because the case is based on tweets- 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 [Para 30]

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