SC ORDER IN MAHMUDABAD CASE CASTS A SHADOW ON OUR RIGHTS

THE CONTEXT: On 21 May 2025, the Supreme Court, in State of Haryana v. Ali Khan Mahmudabad, granted interim bail to the Ashoka University professor but imposed stringent conditions: surrender of passport, a virtual gag on public writing, and a three-member Special Investigation Team (SIT) to probe a two-paragraph Facebook post about “Operation Sindoor”. The order highlights old India’s paradox: judicial benevolence masking creeping constraints on the freedom of speech and expression.

CASE SYNOPSIS – FROM FACEBOOK POST TO SUPREME COURT

• • Trigger: Professor Mahmudabad’s post questioned the optics of India’s military briefing team.
  • Police Action: Multiple first-information reports (FIRs) for “promoting enmity” (Indian Penal Code §153-A) and “public mischief” (§505).
  • SC Order Highlights –

1. Bail “to aid investigation” (shifting the burden of innocence).

2. Passport seizure (prior restraint on travel and academic freedom).

3. SIT of senior Indian Police Service officers to decode “dog whistles”.
Note: these conditions punish before trial and invert the presumption of innocence.

CONSTITUTIONAL & JURISPRUDENTIAL FRAMEWORK

THE ISSUES:

• • Procedural Punishment as Deterrence: Bail has morphed into a conditional privilege, not a right; the National Crime Records Bureau shows conviction rates in expressive offences hovering below 5 percent.
  • Elastic Legal Vocabulary: Undefined notions of “public order” and “patriotism” allow discretionary prosecution, contravening the Shreya Singhal proportionality test.
  • Institutional Capture & Selective Enforcement: Disparate police responses in the Sofiya Qureshi and Mahmudabad episodes reveal partisan policing.
  • Conflict-Time Misinformation Loops: Government blocked ≈ 8,000 X (Twitter) accounts during Operation Sindoor, but disinformation merely migrated to Telegram and diaspora networks.
  • Media Vulnerability: India ranks 151 / 180 in the 2025 World Press Freedom Index—economic dependence and legal threats cited as key pressures.

COMPARATIVE & GLOBAL LEARNING:

• • European Union Digital Services Act (2024) obliges real-time takedown transparency and independent audits.
  • The United Kingdom Online Safety Act (2023) introduces “super-complaints” and age-appropriate design, balancing speech with safety.
  • United States Supreme Court (NetChoice 2024) stresses platform editorial discretion against state “jawboning”.

GOVERNANCE IMPLICATIONS:

• • Rule-of-Law Credibility: Frequent gag-bail regimes erode India’s “due-process” reputation, affecting extradition treaties and investment arbitration.
  • Chilling Effect on Academia & Media: Passport seizure throttles international research collaboration; gag orders stunt public discourse.
  • Federal Strain: States weaponise police powers; Centre invokes Information Technology Act secrecy clauses—fragmenting civil-liberty standards.

GOVERNMENT ACTIONS SO FAR – STRENGTHS & GAPS

THE WAY FORWARD:

• • Legislative Precision: Enact a dedicated statute that incorporates the Law Commission of India’s 267th Report (2017) “twin-filter” for criminalising speech — (i) a specific, unequivocal intent to target a protected class or the State, and (ii) a reasonable likelihood of imminent violence or public disorder.

• • • Trim the Bharatiya Nyaya Sanhita, 2023 Clause 150 by importing the Kedar Nath Singh (1962) “incitement” threshold so that legitimate dissent is ring-fenced.
    • Repeal or sunset Indian Penal Code Sections 153-A, 295-A and 505(2) after a five-year overlap to prevent parallel, vague provisions.

• • Judicially Certified Executive Orders: Every internet shutdown, domain block, or media gag under Information Technology Act, 2000 Section 69-A or Telegraph Act, 1885 Rule 2 must expire within forty-eight hours unless a Judicial Magistrate First Class records a speaking order on necessity and proportionality, echoing Anuradha Bhasin v. Union of India (2020).

• • • Takedown Transparency Dashboard: Ministries must disclose anonymised metadata (legal ground, number of URLs, location, duration) in real time, mirroring Article 42 of the European Union Digital Services Act (enforced February 2024).

• • Convergent Oversight: Merge the Press Council of India, News Broadcasters and Digital Standards Authority and over-the-top (OTT) grievance portals into a single Ofcom-style statutory body with four arms—(i) Standards & Ethics, (ii) Adjudication & Penalties, (iii) Research & Innovation, (iv) Safety & Diversity.

• • • Statutory “contempt” powers allow corrective orders, graded monetary penalties (capped at four percent of India-derived revenue) and mandated carriage of rectifications.

• • District Freedom-of-Expression Cells: Three-member triad; (i) a Deputy Superintendent of Police trained in Article 19 jurisprudence, (ii) an Assistant Public Prosecutor, (iii) a certified digital forensic officer.

• • • Judicial audit: High Courts publish quarterly dashboards; National Crime Records Bureau must disaggregate expressive-offence data for evidence-based policy.
    • Capacity-building: Bureau of Police Research and Development to include a forty-hour “Free Speech and Technology” module in in-service courses.

THE CONCLUSION:

The Mahmudabad order is a litmus test for India’s constitutional mettle. Transforming “procedural benevolence” into genuine protection requires legislative precision, independent oversight and citizen empowerment. Only then will the freedom of expression cease to be a revocable favour and reclaim its status as the lifeblood of India’s democratic republic.

UPSC PAST YEAR QUESTION:

Q. What do you understand by the concept “freedom of speech and expression”? Does it cover hate speech also? Why do the films in India stand on a slightly different plane from other forms of expression? Discuss. 2014

MAINS PRACTICE QUESTION:

Q. Judicial orders that conditionally grant bail yet impose speech gags represent a new form of ‘procedural censorship’. Analyse.

SOURCE:

https://indianexpress.com/article/opinion/columns/pratap-bhanu-mehta-writes-sc-order-in-mahmudabad-case-casts-a-shadow-on-our-rights-10022812/