Justice Surya Kant acknowledges that the content in question in the arrest of the Ashoka University faculty did not disclose any evident criminality
NEW DELHI – Justice Surya Kant of the Supreme Court on Wednesday observed that the content in question in the arrest of Ashoka University faculty member Prof Ali Akbar Mahmudabad did not disclose any evident criminality. But, in a strikingly ambiguous judicial development, the court took seemingly contradictory steps: it ordered the constitution of a Special Investigation Team (SIT) to look into the case threadbare and imposed restrictions on Prof Mahmudabad’s foreign travel.
The court’s acknowledgement that there was no prima facie evidence against the academic throws up critical questions about the rationale behind the actions against him. Under normal circumstances, the absence of criminal elements would typically lead to the quashing of FIRs or the granting of at least interim relief from coercive action. However, the formation of the SIT, generally reserved for complex or serious cases, appears incongruent with the court’s own findings.
Further compounding the inconsistency, the court imposed a travel restriction on Prof Mahmudabad, effectively curbing his fundamental right to free movement, without citing any specific threat of evasion or tampering with evidence. The lack of clear justification for this restraint underscores a troubling vagueness in the order, which sits uncomfortably alongside the court’s acknowledgment of the non-criminal nature of the alleged offence.
Unless further clarified, Justice Surya Kant’s order risks setting a precedent where the absence of criminality does not preclude investigative and punitive measures, an unsettling proposition in any constitutional democracy.
This paradoxical approach, finding no basis for criminal prosecution yet permitting an intrusive investigation and imposing personal restrictions, has left legal observers and civil rights advocates questioning the internal coherence and legal soundness of the decision.
Two FIRs were lodged against Prof Mahmudabad, one on the complaint of an office-bearer of the Bharatiya Janata Yuva Morcha, the youth wing of the BJP, and the other on the complaint of the Haryana State Commission for Women days after its chairperson had summoned the professor over his social media posts against warmongering following Operation Sindoor.
Haryana Police arrested the professor on May 18 under charges that point to sedition and for hurting religious sentiments for his comments on Operation Sindoor.
In Wednesday’s hearing on Prof Mahmudabad’s plea against arrest, the Supreme Court granted him interim bail subject to stringent rules.
“He is restrained from making any comments on the crisis recently faced by India, which was a terrorist attack on Indian soil or the counter response given by our nation,” Bar and Bench quoted the court as saying.
The academic was also asked to surrender his passport.
The bench led by Justice Kant and comprising Justice NK Singh, however, said that “to understand the complexity and for proper appreciation of the language used in the post,” it was going to direct Haryana’s director general of police to constitute a special investigation team of three Indian Police Service officers not belonging to Haryana or Delhi. The SIT shall be headed by an inspector general of police and one of its members will be a woman officer, the court said.
Justice Kant also appeared to be trying to convince senior advocate Kapil Sibal, representing Prof Mahmudabad, that “this is called dog whistling.”
According to reports, Justice Kant also appeared to believe that it is “very unfortunate for a society with free speech when choice of words is deliberately made to insult, humiliate and to cause discomfort to the other side.” Without noting how the professor’s word could have done that, he said that he “should not have a lack of dictionary words to use” and that “he can use language which does not hurt the sentiments of others and use a neutral language.”
It is not clear which language Justice Kant found hurtful.
Kapil Sibal noted that there was no criminal intent in Prof Mahmudabad’s words, nor was he trying to generate communal tension. “He was just hurt. His wife is 9 months pregnant, but he is in jail,” he said, adding that the second FIR by the Haryana State Women’s Commission was also surprising.
Citing the double standards of dealing with same cases, senior lawyer Indira Jaising pointed out on X how the professor and his wife are expecting their first born while he sits in prison, while the BJP minister of Madhya Pradesh who abused Colonel Sofiya Qureshi by calling her the “sister of a terrorists” gets a no-arrest order from the Supreme Court. The tweet, however, exists no more.
