By Joseph Maliakan
Professor Ali Khan Mahmudabad of Ashoka University arrested by the Haryana police on 18 May on
blatantly trumped up charges was granted bail by the Supreme Court on 21 May . While the bail order is
welcome the Supreme Court instead of questioning the arrest and prosecution of the renowned
academic by the police not only issued a gag order against him and directed the Director General of
Haryana police to institute a Special Investigation Team ( SIT) comprising senior IPS officers , who do not
belong to Haryana or Delhi , to investigate and understand the ‘ TRUE ‘ meaning of the post, to “
holistically understand the complexity of the phraseology employed and for proper appreciation of of
some of the expressions used in the two posts.”
In this context one fails to understand under what logic the ‘learned judges’ have reached the conclusion
that Indian Police Service ( IPS ) officers who are generally known for high handed behaviour are
equipped to analyse the post of a professor of political science of an established University! Instead of
judging the fairness of the FIR registered against the professor and the steps taken by the prosecution
the judges themselves have turned prosecutors in the instant case.
That apart the Supreme Court Bench headed by Justice Surya Kant and comprising Justice Kotiswar
Singh also ordered Professor Ali Khan to surrender his passport and prohibited him from writing or
talking about the present Indo-Pak conflict, Operation Sindoor or the case against him.
Article 19 (1 ) (a ) secures to every citizen the freedom of speech and expression . This clause should be
read with clause ( 2 ) which provides that the said right shall not prevent the operation of a law relating
to the matters specified therein. It enables the Legislature to impose restrictions on the right to free
speech under the following heads : ( 1 ) Security of State ( 2 ) Friendly relations with foreign States ( 3 )
Public Order ( 4 ) Decency or Morality ( 5 ) Contempt of Court ( 6 ) Defamation ( 7 ) Incitement to an
Offence and ( 8 ) Sovereignty and Integrity of India.
Imposition of precensorship on publication is , therefore , unless justified under clause (2) , violative of
freedom of speech and expression. In Brij Bhushan v. State of Delhi ( AIR 1950 SC 129 ) an order under
section 7 ( 1 ) (c) of East Punjab Safety Act , 1950 directing the editor and publisher of a newspaper ” to
submit for scrutiny , in duplicate , before publication , till further orders , all communal matters and
news and views about PAKISTAN , including photographs and cartoons “, was struck down by the
Supreme Court , observing :
There can be little doubt that the imposition of precensorship on a journal is a restriction on the liberty
of the press which is an essential part of freedom of speech and expression declared by Article 19 ( 1 )
(a).The article applies to every citizen including professor Ali Khan.
Professor Khan’s post on 8 May said the optics of women officers , Colonel Sofia Querreshi and Wing
Commnander Vymoka Singh , conducting the media briefing was important but would amount to
hypocrisy if not backed by tangible change on the ground , referring to bulldozing of Muslim homes
andb mob lynching of Muslims. This statement the Chairperson of the Haryana Women’s Commission
alleged ” disparaged women officers in the armed forces and promoted communal disharmony “.
A number of sections of the Bharatiya Nyaya Samhita including section 152 ( acts endagering the
sovereinty , unity and integrity of the India) were invoked by the Haryana police while arresting
Professor Ali Khan.
In his post professor Khan praised the Army’s restraint, warned against warmongering , analysed the
strategic shifts in geopolitics between India and Pakistan , criticised dehumanisation, and called for
moral introspection by invoking the teachings of the Gita ,the Prophet and Imam Ali.
The freedom of speech and expression means the right to express one’s convictions and opinions freely
by word of mouth , writing, printing, pictures or any other mode . A democratic government attaches
great importance to this freedom .It is the Courts’ duty to safeguard this freedom under even trying
circumstances.
In Romesh Thappar v .State of Madras ( AIR 1950 SC124) , Patanjili Sastri, C.J.observed : ” Freedom of
speech and of the press lay at the foundation of all democratic organisations, for without the political
discussion no public education , so essential for the proper functioning of the process of popular
government is possible. A freedom of such amplitude might invoke risks of abuse. But the framers of the
Constitution may well have reflected … that it is better to leave a few of its noxious branches to their
luxuriant growth than by pruning them away , to injure the vigour of those yeilding the proper fruits.”
Unfortunately the Supreme Court , it seems has even before the investigation and trial has come to the
conclusion that professor Ali Khan is guilty . The bench characterised the professor’s post as ” dog
whistling “. The professor could have used ” neutral language ” that would not have ” hurt sentiments”
the bench observed. Is the Supreme Court ‘s more concern about free speech or opinions of politically
affiliated people opposing freedom of speech and liberty ?
