Source: The post Supreme Court bail order raises concerns about free speech has been created, based on the article “Pratap Bhanu Mehta writes: SC order in Mahmudabad case casts a shadow on our rights” published in “Indian Express” on 23 May 2025. Supreme Court bail order raises concerns about free speech.
UPSC Syllabus Topic: GS Paper2- Justices
Context: The Supreme Court recently granted bail to Professor Ali Khan Mahmudabad, arrested for a social media post. While the order offers short-term relief, its terms raise deeper concerns. The case highlights how judicial procedures and discretionary powers are being used to suppress constitutional freedoms, especially the right to free speech.
Bail with Punitive Conditions
- Relief That Restricts Liberty: Though bail was granted, Professor Khan was asked to surrender his passport and refrain from writing. These conditions, despite the absence of proven wrongdoing, amount to preemptive punishment.
- Procedure as a Tool of Control: In India, legal procedure often conceals rights violations. Instead of safeguarding liberty, it enables social control by appearing just while inflicting harm.
- Discretion Over Due Process: Judicial discretion now overshadows constitutional safeguards. By masking punishment as procedural fairness, courts dilute citizens’ protections under law.
Questionable Use of Investigative Mechanisms
- SIT as a Disproportionate Response: The Court appointed a Special Investigation Team of IPS officers to examine Khan’s short post. This indicates an excessive legal response to what should be a judicial assessment.
- Presumption of Innocence Undermined: Labeling the post as a “dog whistle” shifts the burden of proof onto the citizen. This implies guilt for exercising basic rights, which the state then investigates.
- Expanding State Surveillance Through Courts: Assigning such investigations to police reinforces state control. Instead of directly judging content, the Court distances itself, legitimising broader scrutiny of speech.
Shrinking Space for Free Expression
- Eroding Article 19 Protections: The Court’s approach to free speech has become increasingly inconsistent. Restrictions now appear guided more by ideological conformity than legal principles.
- Speech Must Appear Patriotic: A dangerous shift is visible—speech must now seem patriotic to be protected. This contradicts the very idea of free expression under the Constitution.
- Imposing Ideological Standards: Patriotism is subjective. By requiring speech to meet vague nationalistic standards, the Court risks endorsing ideological bias over legal objectivity.
Alarming Trends in State and Judicial Conduct
- Political Use of Legal Action: What began as local political grandstanding is now backed at higher state levels. Instead of de-escalating, the government seems intent on making an example of Khan.
- Missed Chance for Judicial Leadership: The new Chief Justice had an opportunity to reinforce liberal constitutionalism. By not doing so, the Court reinforces past inconsistencies.
- From Critique to Criminalisation: While academic criticism of Khan’s post is valid, jumping straight to prosecution reflects a disturbing shift. Legal action has become a first, not final, resort.
Broader Threats to Rights
- Fear Embedded in Relief: Bail, now viewed as a favour, sends a troubling message. Rights are granted reluctantly, not protected assertively.
- Benevolence Undermining Liberty: When relief comes with excessive conditions, it weakens trust in judicial protection. The current stance enables more suppression by treating basic rights as privileges.
Question for practice:
Discuss how the Supreme Court’s bail order in Professor Ali Khan Mahmudabad’s case reflects broader concerns about judicial conduct and free speech in India.
