We need a vigilant magistracy

On June 27, Delhi Police arrested Mohammed Zubair, the co-founder of fact-checking website AltNews, for allegedly outraging religious feelings and promoting enmity between groups.

According to the police officer who filed the complaint, Zubair’s four-year-old satirical tweet on ‘Honeymoon Hotel’ being renamed as ‘Hanuman Hotel’ in the context of a scene from the movie Kissi Se Na Kehna, was provocative and insulting. Thereafter, the police arrested him when he appeared before them in connection with a different case in which a court had granted him protection from arrest.

While the police actions are bizarre, it is disconcerting that he was sent to police custody and judicial custody on the police’s request. This episode has revealed that despite a person’s fundamental right to be produced before a magistrate after being arrested, personal liberty remains vulnerable.

Magistrates form the frontline against attacks on personal liberty as Article 22 of the Constitution recognises an arrestee’s right to be produced before the nearest magistrate within 24 hours of arrest.

A person accused of a crime is presumed to be innocent until found guilty after a trial, and it was settled decades ago that bail is the rule and jail is the exception. Thus, magistrates are obligated to apply their mind and order detention only if there are reasonable grounds that warrant detention.

In particular, the Supreme Court has disfavoured detention in police custody and an arrestee ought to be sent to police custody only if custodial interrogation is absolutely necessary. Further, according to the Code of Criminal Procedure and the SC’s directions, a person accused of an offence punishable with less than seven years of imprisonment must not be arrested unless there are compelling reasons.

In this case, outraging religious sentiments (Section 295A) and promoting enmity between groups (Section 153A) are offences punishable with less than seven years of imprisonment.

More importantly, a prima facie case is not made out against Zubair as Section 295A applies only to ‘aggravated forms of insult to religion with malicious intention’, and Section 153A applies only when the accused has referred to two or more groups. In the light of this, it is unfortunate that Zubair was remanded to police custody for five days.

It is quite common for investigation agencies to seek long periods of custody by alleging non-cooperation by the accused and highlighting the need to collect evidence. However, as the SC has repeatedly held, magistrates must independently assess if such demands are justified. The point at issue before the magistrate was not whether the police should be allowed to interrogate Zubair. Rather, it was whether his detention in police custody was essential for his interrogation. Also, an accused has the right to remain silent and refuse to incriminate oneself. So, the refusal of an accused to incriminate himself cannot be dubbed as non-cooperation by the police.

By July 2, to the original case arising out of the tweet were added charges of violating the Foreign Contribution (Regulation) Act, criminal conspiracy, and destruction of evidence. Though he had already been interrogated for five days, the magistrate authorised his detention in judicial custody (jail) for 14 days.

Things then took a Kafkaesque turn when courts in Uttar Pradesh ordered Zubair to be detained in two cases and the UP Police constituted an SIT to probe the cases against him. In one of the cases, he has been booked for “outraging religious sentiments” for describing three seers who had indulged in hate speech as “hatemongers”. Though the SC granted him interim bail in this case, he was not released as he had not been granted bail in the other cases.

Magistrates can effectively protect citizens from being hounded by the State if they refuse to readily authorise detention in vexatious cases. Malicious prosecution and harassment using criminal law will dwindle if courts invoke their authority to punish police officers who initiate such proceedings or indulge in fabrication of evidence.

Lengthy pre-trial detention and the failure to crackdown on malicious prosecutions encourage the State’s agencies to misuse criminal law.

When the process is in itself a punishment, an eventual acquittal does little to compensate for the trauma caused. On July 11, the SC strongly disapproved of the rampant pre-trial detention in India and the police’s tendency to unnecessarily arrest the accused. The court described the situation as a “vestige of colonial India” and observed that a democracy should not resemble a ‘police state’.

Apart from reiterating the settled principles of arrest and bail, the SC directed courts to decide bail pleas within two weeks and grant bail if the accused had been arrested in contravention of the legal provisions and SC directions.

Lofty expositions of personal liberty are futile if we do not have a vigilant magistracy which can function as a bulwark against the State’s devious attempts to incarcerate citizens. The SC’s latest order ushers in hope and potential for a course-correction.

(The writer is a lawyer)