The always idiotic Pratap Bhanu Mehta writes in the Indian Express: SC order in Mahmudabad case casts a shadow on our rights.
Mehta does not understand that it is hate speech laws, which the Bench has made more draconian, which have greatly curtailed the rights of Indians. The fact is, the law can be used to harass anybody- not just those of whom we disapprove.
We are now in a constitutional regime in which even the Court’s philanthropic benevolence in granting bail lays the groundwork for further oppression.
No. We are in an extra-constitutional regime where the Bench has arrogated powers to itself which directly contradict both the letter and the spirit of the Constitution. Still, if Parliament and the Executive choose to do nothing, we may say that they have delegated power to the Judiciary.
The Supreme Court’s order in State of Haryana vs Ali Khan Mahmudabad ought to send a chill down the spine of those who care for constitutional values.
The Law will harass the Professor just as it harasses umpteen other people. It appears some 200 senior academics consider him guilty of an offence. Still, at least, the fellow isn't being prosecuted for dowry demands or for saying something rude to a Dalit. The problem for Mahmudabad is that the Haryana State Commission for Women has made the complaint against him. The thing will have to be investigated otherwise women will say they are being oppressed and raped and subjected to slut shaming by evil bastards who don't have to sit down to pee.
Their Lordships, mercifully, granted bail to Professor Khan. His arrest is scandalous even by our low standards of civil liberties protection. But the order, even in granting relief, will have the effect of undermining free speech protections.
The Mahmudabad case is like the case against Vijay Shah, a BJP legislator. In both cases a Special Investigative Team has been ordered. Neither will face any real consequences. Indeed, both benefit from the publicity. Here, as is so often the case, the punishment is the process. Politicians and academics gain by being seen to be persecuted by the authorities for 'speaking truth to power'. But plenty of not wholly useless people face the same harassment.
We are now in a constitutional regime in which even the Court’s philanthropic benevolence in granting bail (and that is what bail has become) lays the groundwork for further oppression.
Mehta thinks that at the time of granting bail, the defendant should be declared innocent of all crime. He truly has shit for brains.
This is so for a number of reasons. First, the conditions of the order in itself are an unwarranted denial of rights.
Nonsense!
Khan, an academic, has been asked to surrender his passport
this is routine everywhere if there is flight risk
and desist from writing.
it is routine to require a person of bail from desisting from any activity or contact where there is risk of reoffending.
It is a relief that he is not in jail. But, in effect, the SC has already punished him for an uncertain duration, a punishment he does not deserve.
No. The SC gave him bail. A lower court could have found him innocent. It didn't. Why? The problem is that the Bench has given a very broad interpretation to relevant laws. It has again and again insisted that crimes of this nature are very serious. The Liberals were delighted because they thought they had a weapon to use against their enemies. But the thing is a double edged sword.
It is hard to imagine that the SC is so naïve as to not understand the way social control is being exercised, and liberty curtailed, through the semblance of procedure.
It is hard to imagine that the Bench has a fucking brain. It exists for the sole purpose of creating more and more work for itself.
Procedure is very important to law, and properly done, can constitute an essential element of legal safeguard.
Bad law is bad law regardless of procedure. The good news was that India did not prosecute various offenses in the Penal Code.
It is no secret in India that procedure is not a safeguard. It is an ideology behind which the legal profession hides to obscure substantive matters of rights and justice.
Hate speech laws supposedly protect substantive rights. Thus, Mahmudabad is accused of harming the women of Haryana. Which ideology thinks that a class of people can be hurt or that their human rights are violated if some fool says something rude about them? It is Mehta's own Libtard ideology.
It is also no secret that due process is the punishment.
Unless, the process gets you publicity so you get to pose as a martyr.
It is also no secret that the façade of proceduralism is quite compatible with the exercise of wide discretion, especially amongst judges.
But the Bench is addicted to relitigating everything. Suppose a 2 judge bench gave bail. There would be a review petition and then a 3 judge bench, a 5 judge bench, an 8 judge bench etc. Meanwhile, any real bad egg will simply be killed in an encounter or his house will be bull-dozed. I suppose politicians gain by the utter shittiness of the Judiciary.
So, when the Court lays down these conditions, under the cover of granting some form of procedural justice, it, in effect, is being mendacious about protecting the basic rights in question.
The Bench, very foolishly, decided that there is some very important human right which is violated when somebody says something nasty- even if it isn't nasty but is misunderstood or misrepresented as being so- about some group of people. If crazy shit is turned into a fundamental right by the Bench, then fundamental liberties are curtailed.
If the condition of bail in a case of a citizen’s arrest,
this was not a citizen's arrest. A complaint was made and the police took action.
not for a crime, but for exercising their ordinary rights,
the Bench took away the ordinary right to say stuff like 'wimmin be kray kray' or 'all thieves have the surname Modi.'
is onerous, the procedure of protecting that right is also a deterrent to free speech.
There are many restrictions on free speech. Libtards were in favour of draconian punishments for hate speech. Now they themselves are at the receiving end of this type of harassment.
The Court has also appointed a three-person SIT, of IPS officers in this case.
Just as a SIT was appointed to investigate the absurd allegation that Modi had try to sabotage his own Chief Ministership by instigating riots. I suppose one may say that perceptions matter. Some people, seeing the name 'Mahmudabad' will jump to the conclusion that the author shares the opinions of his grandfather who was the biggest financial backer of the Muslim League. But, they forget, his other grandfather was Jagat Mehta- a senior Indian diplomat. The Haryana Women's Commission seem to be under the impression that Professor Mahmudabad said that a female Indian military officer had a 'painted' face. This isn't true. Those who won't take my word for it, will be reassured by the SIT's findings. After all, there are genuine Islamists recruiting on campuses. Let Mahmudabad be given a clean chit.
Now, an SIT may be something the parties desire to aid the investigation. The culture of our adjudication encourages these legal travesties. But think of the macabrely comic situation of three senior police officers having to decode some esoteric dog whistle in a two-paragraph post as if it were some piece of cryptography.
They will do more. They will establish that the young man has no links with Islamic terror groups.
H M Seervai
a Parsi from Bombay. He looked down on dehatis, with horrible English accents, who became judges.
once caustically remarked on a judge that “he knows neither law nor English”.
The Bench decided that the law didn't matter. It cold do anything it liked in the name of Justice.
We assume that our current Lordships know both the law and English. They are supremely competent to decide within five minutes what the plain meaning or ambiguities of Khan’s post might have been, and whether it was on the right side of the law.
They were hearing a bail application. They weren't trying the case. One Judge warned against 'dog whistles'- i.e. seemingly innocuous language used for a mischievous purpose.
That they chose to go through the arduous route of an SIT
it wasn't arduous for them. If they wanted to try the case themselves, they would have had to clear time to hear both sides.
rather than call a spade a spade, which falls within their authority,
If they decided the case without hearing both times there would have been an in curiam petition.
indicates two things: First, it actually shifts the presumption of innocence.
There is no presumption of innocence when it comes to acting on a criminal complaint and making an arrest. Bail may be granted to people who plead guilty. They are given time to settle their affairs till the date upon which the Court awards a sentence. Mehta is wholly ignorant of the law.
On the other hand, it is true that the two judges who granted bail were very remis in not the dancing bhangra naked because, in his heart of hearts, this is what Mehta really really wants.
It is a way of saying that if you so much as exercise your constitutional rights, it is you, the citizen, who will have to prove your innocence.
No. The prosecution has to prove your guilt.
The reference to a possible dog whistle in Khan’s post itself shifts this presumption, and gives an indication that the Court wants to give a much longer rope to the state than it wants to give to the defendant.
No. It indicates that the person on bail must not repeat the offense of which he is accused. Moreover, what was previously done openly can't be done in a covert manner.
The SC’s jurisprudence on Article 19 has been, let us say without dog whistling, inconsistent at best.
In other words, sometimes it harms Mehta's enemies and sometimes it harms his friends.
But in some ways, it is getting worse. It is a platitude that there is no such thing as absolute free speech.
Sure there is. It is a different matter that no Anglo-Saxon jurisdiction has ever had it.
But the restrictions on speech have to be, even in Indian law, very narrowly tailored to things such as very evident incitement and disruption of public order.
Sadly, anything at all could be considered incitement or 'fighting words'. Essentially, this is heckler's veto if the heckler is a fucking hooligan.
Two, shifts in legal culture are dangerous — they have enabled the requirement that free speech is only for “virtuous” speech. This is not the occasion to litigate the merits of Khan’s post.
Mehta is angry that the Supreme Court did not relitigate the matter. It merely granted bail.
The issue is not his merit, but his rights.
That is a matter for his lawyer. I suppose if this young man really wanted to quash the case he should have got some of his high placed Hindu relatives to make nice to the Haryana Women's Commissioner. But, he gains by the publicity.
As a matter of debate, in the public sphere, people may very well judge these posts to be ill-advised or unpatriotic.
They weren't. Nothing wrong with saying 'boo to Modi! I hate the BJP!' but the right way to do it is to suggest that you would have fucking nuked the Pakis. Quoting Scripture makes you look a pussy. To be clear, I mean a pussy cat. I don't even know what a vagina is. I believe it is one of the 50 states which comprise the USA.
It is their right to do so. But as a constitutional and legal matter, it ought to be worrying when plaintiffs are almost forced to prove that their speech has patriotic merit.
There is no such obligation. However, a Court is welcome to consider a defendant's record of Civic virtue.
In fact, there is no bigger dog whistle than the state looking for patriotic merit in speech and for every citizen to prove that they are patriotic.
Mehta does not understand what 'dog whistle' means. It is certainly a defence in law, in a case of sedition or treason, to show that all your actions and utterances have been motivated by patriotism.
For one thing, patriotism is a nebulous object.
No. It a concept everyone understands.
Who sets the standard? Under current standards, I am pretty sure Mahatma Gandhi, Jawaharlal Nehru, and possibly even B R Ambedkar would have, at various moments, been deemed unpatriotic.
No. No one suggested that Gandhi & Nehru weren't patriots. They were seditious against a foreign Sovereign which is why they spent a lot of time in jail. J.N. Mandal wasn't a patriot. He was Jinnah's Law Minister but had to flee to India. Ambedkar, sadly, didn't have that option.
In some ways, by shifting the terrain to patriotism, the Court is, consciously or unconsciously, legitimising an ideology, not protecting speech or liberty.
No. It is following common practice in Anglo Saxon jurisdictions. It is a defence in law, when charged with giving aid and comfort to the enemy, to show there was a patriotic motive for your actions. Thus a person who pretended to be a Nazi so as to get close to the Fifth Column and expose its operations, would be acquitted if tried for treason.
It is not the Court’s job to be the schoolmaster of patriotism.
Nor is it the job of this pedagogue to expose his ignorance of the law and his inability to reason.
But this episode is chilling in another respect. Initially, this episode was presented as a local anomaly — the Haryana State Commission for Women and local BJP leaders scoring brownie points. But now, two things are clear. First, the state at the highest levels is committed to making an example out of Khan.
If that were really the case, he'd have been charged under ULPA or just 'disappeared'. The truth of the matter is that this is a publicity stunt. All involved seek to gain by it.
The state could easily defuse this matter, even after the filing of the FIR, if it wanted.
How? Declare Martial Law?
It continues a disturbing pattern of exemplary targeting, which is the form in which this government exercises social control.
Nope. This is a storm in a teacup from which the parties involved hope to gain publicity.
The second is that the new Chief Justice had a golden opportunity to create a court that returns to the first principles of liberal jurisprudence and cuts through the clutter of inconsistencies and arbitrary discretion that has shaped Indian law.
No. The CJI is merely the master of the roster. But he has just one vote same as any other Supreme Court Judge.
That opportunity has been missed.
Mehta has never missed an opportunity to reveal his imbecility.
Second, it is also becoming evident that all kinds of functionaries, whether in courts, bureaucracy, police or academia, are refusing to make a very basic distinction.
Mehta can't distinguish shit.
Let us say, for argument’s sake, Khan’s post ought to be critiqued, as a letter by 200 prominent academic functionaries has done.
That 'Statement of Objection' meant that there would have to be a full investigation. I suppose the Right is feeling its oats and wants to takeover more and more campuses. This is because the Left is utterly useless.
They have a right to critique. But the idea that we immediately jump to legal prosecution is the road to disaster.
The Bench could raise the bar for registering such complaints. It has decided to go the other way.
We are grateful that their Lordships have at least shown that bail is still possible. But their benevolence also casts an ominous shadow on our rights.
What cast the shadow was a long line of judgments culminating in Shaheen Abdullah v. Union of India (2022)- where a journalist approached the bench to take draconian action against 'hate speech' by Hindus & 'PIL man' Ashwini Kumar Upadhyay v. Union of India.
Still, the fact remains, even if the Law is an ass, Mehta is what comes out of the backside of the ass.
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