Context:

• The Supreme Court granted bail to Professor Ali Khan Mahmudabad, arrested in a case involving the exercise of his constitutional rights, notably free speech.
• Because it affects civil liberties and the right to dissent under Article 19 of the Constitution, the ruling is viewed as problematic.

 Constitutional and Legal Concerns:

• Violation of civil liberties:
  • Arbitrary arrest: The arrest of Professor Khan, not for a criminal act but for a social media post, is emblematic of the shrinking space for dissent in India.
  • Punishment via procedure: The bail conditions - surrendering passport and refraining from writing - amount to punishment without conviction, violating due process.
• Proceduralism as a tool of oppression:
  • Procedures are weaponized to curtail liberties, with procedure becoming the punishment itself.
  • Instead of upholding rights, the judiciary's broad discretionary powers are enabling arbitrary state action.

SIT Formation - A Dubious Move:

• SC appointed a three-member SIT of IPS officers to investigate a two-paragraph social media post.
• This shifts the burden of proof onto the citizen, violating the principle of presumption of innocence and indicating excessive state overreach.

Judicial Ambiguity on Article 19:

• Inconsistency in free speech jurisprudence:
  • Narrow interpretation of restrictions: Indian law allows restrictions only in cases of public order, incitement, or defamation, yet courts are legitimizing vague and ideological limits like patriotism.
  • Virtuous speech doctrine: Emergence of a disturbing trend where only speech deemed patriotic or virtuous is considered legally permissible.
• Patriotism as a legal standard:
  • Dangerous precedent: Requiring citizens to prove patriotic intent in speech moves away from liberal democratic principles.
  • Historical irony: Under today’s standards, even leaders like Gandhi, Nehru, and Ambedkar could be seen as unpatriotic.

Institutional and Cultural Decay:

• Politicisation of law and order:
  • Instrumentalisation of legal processes: The case started as a local political stunt but escalated into state-level targeting.
  • Pattern of exemplary punishment: Government uses such cases to exercise social control and suppress dissent.
• Missed opportunity for judicial reassertion:
  • Chief Justice’s role: A chance to reform jurisprudence and restore liberal constitutionalism has been missed.
  • Wider culture of legal overreach: Courts, police, and academia increasingly fail to distinguish between criticism and criminality.

Conclusion:

• While the SC granted bail (judicial benevolence), it did so in a manner that erodes constitutional protections.
• The episode sets a precedent that could have a chilling effect on free speech, deterring citizens from exercising fundamental rights, and weakening the democratic fabric of the nation.