A Delhi court on Friday granted bail to AltNews co-founder Mohammed Zubair, saying the Hindu religion and its followers were “tolerant” and emphasising the importance of free speech and dissent to a democracy.

Zubair, arrested last month on charges of hurting religious sentiments and promoting enmity through a 2018 tweet, will remain in jail because he is yet to secure bail in several similar cases in Uttar Pradesh.

Additional sessions judge Devender Kumar Jangala underlined that neither Zubair’s four-year-old tweet nor the image from a 39-year-old film he had attached to it had generated any complaints before, and said his actions did not merit the charges unless done with “malice” or “guilty intention”.

Told by the prosecution that Zubair had through the labels “before 2014” and “after 2014” in his tweet attacked “the ruling political party”, the judge said Indian political parties were open to criticism.

He added that mere criticism of political parties did not justify the invocation of penal sections 153A (promoting enmity between different groups) and 295A (outraging religious feelings).

On the prosecution’s charge of Foreign Contribution Regulation Act violations, the court said Zubair had placed on record that “on its (AltNews) website it has been specifically mentioned that only Indian citizens with Indian bank accounts should contribute… and the accused has taken all the safeguard(s) to prevent the receipt of any foreign contribution. The material placed on record by the accused prima facie shows due diligence taken by him as per Section 39 of FCRA.”

Delhi police sources said Zubair would be handed over to Uttar Pradesh police, most likely on Saturday.

Hindu sentiments

Zubair had on March 24, 2018, tweeted: “Before 2014: Honeymoon Hotel. After 2014: Hanuman Hotel. #SanskaariHotel.”

He had attached a still from Hrishikesh Mukherjee’s 1983 film Kissise Na Kehna that shows the Hindi signboard of a hotel changed from “Honeymoon Hotel” to “Hanuman Hotel”.

“This movie was certified by the Central Board of Film Certification, which is a statutory body of the Government of India, and is available for public view(ing) since then. No complaint is stated to have been filed till today that the said scene of the movie has hurt the feelings of a particular community or society,” the judge said.

He underlined that no complaints had been lodged against Zubair’s 2018 tweet, either, till the one of June 20, 2022, in connection with which he was arrested on June 27.

The complainant had alleged that linking Hanuman, a brahmachari, to the concept of honeymoon was an insult.

“Hindu religion is one of the oldest religions and most tolerant. The followers of the Hindu religion are also tolerant. Hindu religion is so tolerant that its followers proudly name their institution/ organisation/ facilities in the name of their Holy God or Goddess,” the judge said.

“The website of the ministry of corporate affairs, Government of India, reveals that (a) number of companies are incorporated in the name of the Holy Hindu God or Goddess. Therefore, naming of an institute, facility or organisation, or child in the name of Hindu deity, on the face of it, is not violative of Section 153A and 295A of the IPC unless the same is done with malice/ guilty intention.”

‘Attack’ on party

On the allegation that Zubair had “point(ed) towards the ruling political party… in a prejudicial manner”, the judge said in his order: “In Indian democracy the political parties are open for their criticism. The political parties are not shying away from the public to face the criticism of its (sic) policies. The voice of dissent is necessary for a healthy democracy. Therefore, merely for the criticism of any political parties it is not justified to invoke Section 153A and 295A of the IPC.”

Free speech

The judge said: “Democracy is a government by the people via open discussion and democracy can neither work nor prosper unless people go out to share their views. Article 19(1)(a) of the Constitution of India gives freedom of speech and expression to its citizens. Undoubtedly free speech is the proper foundation of a democratic society.

“A free exchange of ideas, dissemination of information without restraints, dissemination of knowledge, airing of differing viewpoints, debating and forming one’s views and expressing them, are the basic indicators of a free society.

“This freedom alone makes it possible for people to formulate their own views and opinions on a proper basis and to exercise their social, economic, and political rights in a free society in an informed manner.”

Police lapses

The complaint against Zubair was based on a tweet from a Twitter user who identifies himself as “Hanuman Bhakt” and uses the handle @balajikijaiin.

The judge noted that the police had so far failed to establish the identity of the complainant or record their statement — or record that of anyone else offended by the 2018 tweet.

Since “all the evidence (in the case is) documentary in nature”, necessary recoveries have been made, and the accused has spent several days in police custody and judicial custody, the judge said “no further (custodial) interrogation is required”.

Bail terms

The court granted relief to Zubair on a bail bond of Rs 50,000 and a surety of like amount, and directed him not to leave the country without its permission.

He must not repeat the tweet, and ensure that any tweeting or retweeting he does “is not even touching boundaries of the offence punishable under Section 153A and 295A of IPC”.

He must surrender his passport to the investigating agency within three days of his release from jail. He must not tamper with evidence or do anything that is unlawful or might prejudice the proceedings in the case.

Zubair must join the investigation whenever called by the station house officer or investigating officer. He must give them a cellphone number on which he may be contacted any time and which will always be kept switched on and active.

Other FIRs

Zubair has had six FIRs registered against him in Uttar Pradesh on the charge of hurting Hindu sentiments through a tweet, posted a few weeks before his arrest, which accused certain Hindu religious leaders of “hate-mongering”.

Two of these FIRs were registered in Hathras and one each in Sitapur, Ghaziabad, Muzaffarnagar and Lakhimpur Kheri. Zubair has received interim bail from the Supreme Court in the Sitapur case but no relief yet against judicial remands ordered in Lakhimpur Kheri and one of the Hathras cases.

Zubair has petitioned the Supreme Court seeking quashing of the six FIRs registered in Uttar Pradesh on the ground that the charges are false, motivated and mala fide. Delhi High Court will on July 27 hear his plea for quashing the Delhi FIR.