Why Supreme Court’s order in Mahmudabad’s case indicators a shift in free speech jurisprudence | Explained-OxBig News Network

The Supreme Court on Wednesday (May 21, 2025) granted interim bail to Ashoka University professor Ali Khan Mahmudabad, however declined to remain the continuing investigation into his social media posts associated to Operation Sindoor, India’s navy offensive concentrating on terrorist infrastructure in Pakistan and Pakistan-occupied Kashmir (PoK). The professor was arrested by police in BJP-ruled Haryana on May 18, following the registration of two first data experiences (FIRs) in connection together with his on-line statements.

A Bench comprising Justices Surya Kant and N. Kotiswar Singh clarified that the interim aid was being prolonged solely to “facilitate” the investigation. Expressing issues that the academician could have engaged in “dog whistling” via his posts, the courtroom additionally ordered the structure of a Special Investigation Team (SIT) to look at “the complexity of the phraseology employed.” 

Also Read: Thought police: on a professor’s arrest

The case now hinges on whether or not the SIT can credibly show that the professor’s posts meet the stringent threshold essential to invoke the intense legal prices towards him. More importantly, it raises a elementary query: whether or not purportedly unpopular or unpatriotic social media posts might be excluded from the protecting ambit of free speech beneath Article 19(1)(a) of the Constitution?

The posts in query

In a Facebook put up dated May 8, Professor Ali Khan Mahmudabad criticised the actions of Pakistan’s navy whereas commending the strategic restraint exercised by the Indian armed forces. Describing the lack of civilian lives on each side as “tragic,” he referred to as for a de-escalation of hostilities. He additionally famous that the inclusion of girls officers — Colonel Sofiya Qureshi and Wing Commander Vyomika Singh — in India’s press briefings mirrored the nation’s pluralist beliefs however would quantity to “hypocrisy” if not backed by tangible change on the bottom, referring to situations of bulldozing of homes and mob lynching.

In a subsequent put up on May 11, he condemned the online abuse directed at Foreign Secretary Vikram Misri for saying the ceasefire. Quoting each Prophet Muhammad and the Bhagavad Gita, he denounced the “blind bloodlust for war” displayed by sure netizens. Warmongering, he wrote, “disrespects the seriousness of war and dishonours the lives of soldiers whose lives are actually on the line.”

Criminal prices invoked

Stringent legal prices beneath the Bharatiya Nyaya Sanhita (BNS), 2023, have been levelled towards Mr. Mahmudabad primarily based on two separate complaints—one filed by BJP Yuva Morcha chief Yogesh Jathedi, and the opposite by Haryana State Women’s Commission Chairperson Renu Bhatia.

The first FIR, stemming from Mr. Jathedi’s criticism, invokes Section 152, which penalises acts “endangering sovereignty, unity and integrity of India”. This provision carefully mirrors the language of the colonial-era sedition regulation beneath the now-repealed Indian Penal Code—an offence the Supreme Court placed in abeyance in 2022, citing its incompatibility with the “current social milieu” and its susceptibility to misuse towards dissidents.

Additional prices in the identical FIR embody Section 196(1)(b), which penalises acts that disturb communal concord and public tranquillity; Section 197(1)(c), which targets “imputations [and] assertions prejudicial to national integration”; and Section 299, which criminalises “deliberate and malicious acts intended to outrage religious feelings.”

The second FIR, filed on Ms. Bhatia’s criticism, invokes two additional offences: Section 79, penalising “acts, words or gestures intended to insult modesty of a woman” and Section 353, which pertains to “statements conducing to public mischief”.

Of these, Section 152 alone prescribes a jail time period of as much as seven years, whereas the others are punishable with imprisonment of as much as three years.

Supreme Court’s conditional aid

Senior advocate Kapil Sibal, showing for Mr. Mahmudabad, contended that his consumer harboured no legal intent and that his statements had been an expression of patriotism. However, Justice Kant noticed that, prima facie, sure phrases utilized by the professor appeared to hold a “dual meaning” and questioned his motives, asking through the proceedings why he was in search of “cheap popularity” at a time of nationwide disaster.

While acknowledging the professor’s proper to free expression, the judges pressured that this freedom should not be exercised in a fashion that causes “hurt” to others.

Accordingly, the courtroom directed him to hitch the investigation and lengthen full cooperation. It instructed Additional Solicitor-General S.V. Raju, showing for the State of Haryana, to make sure that no additional FIRs are registered in relation to the 2 contentious posts. The Director General of Police, Haryana, was additionally ordered to represent a three-person SIT comprising senior IPS officers from exterior each Haryana and Delhi to look at and interpret the true that means of the posts.

The interim aid of bail was made conditional on Mr. Mahmudabad surrendering his passport and refraining from commenting on or writing in regards to the two posts beneath investigation, in addition to from expressing any opinion on the Pahalgam terror assault or Operation Sindoor.

‘Unpatriotic’ speech protected

The Constitution permits restrictions on speech solely on eight narrowly outlined grounds beneath Article 19(2), which incorporates incitement to an offence and disruption of public order. The Supreme Court has constantly held that the state can not impose restrictions past these constitutionally prescribed limitations.

In 2015, within the case of Shreya Singhal v. Union of India, the courtroom struck down Section 66A of the Information Technology Act, 2000, holding that imprecise grounds akin to “annoyance,” “insult,” or “hatred” can not justify the criminalisation of speech. It affirmed that speech which “offends, shocks, or disturbs” stays protected beneath Article 19(1)(a), and any restriction should fulfill the check of reasonableness beneath Article 19(2).

Most lately, in Kaushal Kishore v. State of Uttar Pradesh (2023), a Constitution Bench reiterated that the grounds enumerated in Article 19(2) are exhaustive. No extra restrictions—nonetheless well-intentioned—might be learn into the constitutional framework. The judges underscored that “no one can either be taxed or penalised for holding an opinion which is not in conformity with the constitutional values”.

“I do not believe there is anything inherently objectionable in either of Mr. Mahmudabad’s posts,” Justice Gautam Patel, former decide of the Bombay High Court, informed The Hindu. “Nothing in them appears to violate the parameters set forth in Article 19(2). Even if the posts are complex or susceptible to multiple interpretations, constitutional ethos demands that the interpretation favouring free speech must prevail.”

He additional noticed that whereas the state should be afforded a possibility to current any incriminating materials, an alleged deficiency of “patriotism” can not function a professional foundation to curtail the elemental proper to freedom of expression.

Inconsistent precedents

As lately as March, the Supreme Court laid down clear requirements for the registration of FIRs beneath Sections 196, 197(1), and 299 of the BNS, whereas listening to a petition filed by Congress MP Imran Pratapgarhi, who had been booked for a social media put up quoting considered one of his poems. A Bench comprising Justices Abhay S. Oka and Ujjal Bhuyan underscored that, in such instances, the influence of the spoken or written phrases should be assessed from the attitude of “reasonable, strong-minded, firm and courageous individuals,” slightly than these “who always have a sense of insecurity or perceive criticism as a threat to their power or position.”

In a resolute affirmation of the suitable to free speech, Justice Oka noticed that speech could nicely discomfort even members of the judiciary, however it stays the courtroom’s “duty to uphold” and “zealously protect” the elemental freedoms assured beneath Article 19(1)(a) of the Constitution.

Alok Prasanna Kumar, advocate and co-founder of the Vidhi Centre for Legal Policy, noticed that judicial disregard for precedents set by coordinate benches has develop into a “routine feature” of the courts. “Judges are increasingly allowing personal biases or prevailing public sentiment to influence their decision-making. Rather than upholding constitutional guarantees, there is a growing tendency to project a veneer of neutrality — one that is, in truth, farcical,” he informed The Hindu.