"Criminal Justice Machinery Relentlessly Employed Against M Zubair": Court

Fact-checker Mohammed Zubair, who got bail last week, was "trapped in a vicious cycle of criminal process where the process itself has become the punishment," the Supreme Court has said, warning that arrest "cannot be used as a punitive tool". The detailed judgment in the case that was released today contained a series of extremely strong remarks. Muhammed Zubair had walked free last week, after more than a month in jail, days after Chief Justice NV Ramana flagged the matter of "hasty and indiscriminate arrests, difficulty in obtaining bail, and prolonged incarceration of undertrials".

"Arrest is not meant to be and must not be used as a punitive tool because it results in one of the gravest possible consequences emanating from criminal law: the loss of personal liberty," read the judgment from the bench of Justices DY Chandrachud and AS Bopanna today.

"Individuals must not be punished solely on the basis of allegations, and without a fair trial... When the power to arrest is exercised without application of mind and without due regard to the law, it amounts to an abuse of power," it added.

The court said the Section 41 of the CrPC and safeguards in criminal law exist in recognition of the reality that any criminal proceeding "almost inevitably involves the might of the state, with unlimited resources at its disposal, against a lone individual".

The court had only released the operative portion of the order on July 20 to enable early release of Mohammed Zubair, who had sought relief after cases against him mushroomed across several states including Delhi and Uttar Pradesh.

It started with a four-year-old tweet sharing a screenshot from a popular Hindi movie. Later, cases were filed on other complaints as well - including another tweet in which the fact-checker on Alt News website called some right wing leaders "hate mongers".

Days before the arrest, Mohammed Zubair had drawn attention to the BJP's Nupur Sharma's comment on Prophet Muhammad, setting off a huge controversy and backlash.

On July 20, the top court gave him bail, disbanded a special investigation in UP and transferred all UP cases to Delhi. The judges also rejected the Uttar Pradesh government's request that Mohammed Zubair be "stopped from putting out tweets".

Regarding the last, the court said, "The imposition of such a condition would tantamount to a gag order... (which) have a chilling effect on the freedom of speech".

"According to the petitioner, he is a journalist who is the co-founder of a fact checking website and he uses Twitter as a medium of communication to dispel false news and misinformation in this age of morphed images, clickbait, and tailored videos. Passing an order restricting him from posting on social media would amount to an unjustified violation of the freedom of speech and expression, and the freedom to practice his profession," the court added.

Earlier this month, speaking at an event in Jaipur in the presence of Union Law Minister Kiren Rijiju, Chief Justice NV Ramana had called the process in India's criminal justice system a "punishment".

"In our criminal justice system, the process is the punishment. From hasty, indiscriminate arrests, to difficulty in obtaining bail, the process leading to the prolonged incarceration of under trials needs urgent attention," he had said, without naming any particular case.