In this episode of Capital Beat, Senior advocate Sanjay Hegde joins the discussion on the Supreme Court’s interim bail order for Professor Ali Khan Mahmudabad. While the court granted him relief from custody, it imposed strict conditions on his public expression and made striking comments on free speech. Hegde weighs in on the legality, implications, and broader message the order sends to civil society.
Professor Mahmudabad was granted interim bail by the Supreme Court in a case registered by the Haryana Police over his social media posts to Operation Sindoor. He had been in custody since May 18. The court did not stay the investigation but directed the formation of a Special Investigation Team (SIT) comprised of IPS officers from outside Haryana and Delhi.
The bail conditions include a gag: Mahmudabad cannot express views or publish content relating to the terror attack or India’s counter-response, nor comment on the social media post that triggered the FIR. He must also surrender his passport and cooperate with the SIT.
During the hearing, Justice Suryakant remarked that Mahmudabad’s language amounted to “dog-whistling.” He said, “Some words have double meanings… you can convey your feelings using neutral language without hurting sentiments.”
Hegde responded critically, stating, “Some of us may feel the court’s expressions could also have been better worded.” He added that while interim relief was welcome, the court’s observations could have a chilling effect on free expression.
Legal precedent and selective restraint
Hegde compared this ruling to earlier cases, such as the one involving Madhya Pradesh minister Vijay Shah, where the court had ordered an SIT but protected the accused from arrest. He noted the lack of action against those who initiated the complaint, particularly Haryana Women’s Commission chairperson Renu Bhatia and a local BJP youth leader.
“The court could have sent a stronger message to overzealous complainants. Instead, its restraint may embolden them,” Hegde cautioned.
Free speech vs self-censorship
Hegde expressed concern that the judgment encourages self-censorship, especially during “sensitive times”. He questioned whether citizens must now calculate the political climate before speaking freely: “Are we to mind our words at all times, and has the Hitler’s veto been weaponized?”
He reminded viewers that freedom of speech is meant to protect unpopular opinions, not popular ones, and that rights are not state-given doles but guaranteed by the Constitution.
Worrying judicial rhetoric
Justice Suryakant’s remark — “Everybody talks about rights as if the country for the last 75 years was distributing rights” — drew sharp criticism from Hegde. He called it a misunderstanding of constitutional guarantees: “You either have rights or you don’t. They are not given out as charity.”
He invoked Justice HR Khanna’s historic dissent in ADM Jabalpur, which affirmed that rights exist independent of state discretion, later upheld by Justice DY Chandrachud’s bench.
Addressing the core allegation, Hegde dismissed the “dog-whistling” charge. He explained that the post in question merely highlighted the contradiction between celebrating a Muslim woman’s patriotism and targeting others from the same community with violence.
“Could he have said it more simply? Yes. But when is the ‘auspicious’ time to talk about lynching? Every moment seems to be too sensitive,” he added.
Cost of liberty
Hegde concluded by stressing that liberty must be exercised and defended constantly. “Freedom of speech comes with a cost. You can take no liberty for granted unless it’s used and protected.”
He also argued for accountability from complainants. “Perhaps the cost of such adventurous FIRs should be recovered from individuals who misuse the legal process.”
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