“Professor’s remark seemed like dog whistling”; SC grants interim bail to Mahmudabad

 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

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.

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“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 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 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.