SC grants interim bail to Mahmudabad, asks Haryana DGP to set up 3-member SIT to probe case

New Delhi | The Supreme Court on Wednesday granted interim bail to Ashoka University professor Ali Khan Mahmudabad, arrested for his contentious social media posts on Operation Sindoor, but refused to stay the investigation against him.

A bench of Justices Surya Kant and N Kotisar Singh directed the Haryana director general of police to constitute a three-member special investigation team (SIT) headed by an inspector general (IG) rank officer also including a superintendent (SP) rank woman officer within 24 hours to investigate the case.

"Having regard to the contents of the two alleged offending posts uploaded on social media, which have led to the registration of two FIRs against the petitioner, we are satisfied that no case for staying the investigation is made out," the bench said.

The top court ordered, "However, to holistically understand the complexity of the phraseology employed and for proper appreciation of some of the expressions used in these two online posts, we direct the Director General of Police, Haryana to constitute an SIT comprising three directly recruited IPS Officers, who do not belong to the States of Haryana or Delhi."

It said in the SIT the remaining members should be officers in the rank of Superintendent of Police and above and one of them will be a woman IPS officer.

"We have also considered the prayer for bail made on behalf of the petitioner. With a view to facilitate the investigation, as noted above, we direct that the petitioner be released on interim bail, subject to his furnishing bail bonds to the satisfaction of the Chief Judicial Magistrate, Sonipat, Haryana," it directed.

The bench, which examined the online post by the professor, who heads the political science department in the Sonipat-based Ashoka University, questioned his choice of words, saying they were used deliberately to humiliate, insult, or put others in discomfort.

"The choice of words are deliberately made to insult, humiliate or cause discomfort to others. The professor, who is a learned person cannot lack a dictionary...he could have conveyed the very same feelings in a simple language without hurting others. He should have shown respect for the sentiments of others. He could have used a simple and neutral kind of language, respecting others," Justice Kant said.

The bench said though everybody had the right to freedom of expression, Mahmudabad's remarks seemed like "dog whistling", used in legal parlance.

"This is what we call it as dog whistling in law. He should have used more respectful and neutral language," the court said.

The bench told his lawyer, senior counsel Kapil Sibal, "At the time when so many things were happening in the country, where was the occasion for him to use these kinds of words which could be insulting, humiliating and putting others in discomfort? He is a learned man, he cannot be said to be short of words."

The bench imposed certain conditions on Mahmudabad that he shall not write any online post, article or shall not make any oral speech related to either of the two online posts, which are subject-matter of the investigation.

The bench also restrained the professor from expressing any opinion in relation to the terrorist attack on Indian soil or the counter response given by the Indian armed forces.

"The petitioner is directed to surrender his passport before the Court of the Chief Judicial Magistrate, Sonipat," the bench said.

Mahmudabad was directed to join and fully cooperate with the investigation.

"Everybody has a right to express himself. But is it the time to talk of it this much communal...? The country has faced a big challenge and is still facing it. Some monsters have come all the way from other jurisdictions and attacked innocent people. Entire country is staying united. But at this juncture… Why make such statements? Just to gain cheap popularity on this occasion?" the bench said.

Sibal agreed that it was not the occasion for making such comments but said the remarks needed to be viewed in a way that there was no criminality involved in those remarks.

The bench referring to the reactions over Mahmudabad's arrest said, "Everybody is talking about fundamental right of speech and expression. This right is not absolute… As if the country for the last 75 years was distributing rights."

The judge said while some of it was not offensive to the nation, the moment Mahmudabad began opining, his words turned "communal" with a "double meaning".

The bench told ASG S V Raju, appearing for the Haryana, that the bonafide of the comments were the subject matter of investigation.

The bench said if the SIT finds any other incriminating material against the petitioner, it shall be at liberty to place it on record and seek modification of the interim order.

The bench also referred to some reports on university students and the faculty protesting against his arrest and said, "If they dare to do anything, we will not accept this, if they try to join hands, etc., we know how to deal with these people, they are within our jurisdiction."

A Sonipat court on May 20 sent Mahmudabad to judicial custody till May 27 after the completion of his two-day police custody.

Haryana Police arrested Mahmudabad on May 18 after two FIRs were registered against him.

The two FIRs -- one based on a complaint by the chairperson of Haryana State Commission for Women, Renu Bhatia, and the other on a complaint by a village sarpanch -- were lodged by Rai police in Sonipat district.