“Where is the Criminal Intent?” Counsel for Ali Khan Mahmudabad asks the Supreme Court

A Division Bench comprising Justices Surya Kant and N.K. Singh granted interim bail to Ashoka University professor Ali Khan Mahmudabad today. Mahmudabad was in judicial custody over his social media posts related to Operation Sindoor. 

Senior Advocate Kapil Sibal stood as Mahmudabad’s counsel, and began his arguments by reading Mahmudabad’s Facebook post aloud. He had written that India’s strategy involved collapsing the distinction between the terrorists or non-State actors and the Pakistani military, which meant that the latter could no longer hide behind the non-state actors. He had commented that choosing Muslim women officers in the Indian Army for media debriefs was ‘important’ as proof that the secular vision of the founders of our Republic is still alive.  

Sibal further read out Mahmudabad’s comments complimenting the Indian right wing for their support for Colonel Sofia Qureshi. Mahmudabad invited them to shed their hypocritical approach and oppose mob lynching and the bulldozing that Indian Muslims are frequently subjected to with equal gusto.

At this point, Justice Kant began to show his disapproval of Mahmudabad’s articulation of the issue, especially in the wake of the Pahalgam attacks and Operation Sindoor. Without specifying the words, he stated that Mahmudabad was engaging in “dog whistling” and may have hurt the sentiments “on the other side”. “There is a right to free speech etc… where is the duty?” Justice Kant asked.  

“Where is the criminal intent?” Sibal asked. He submitted that Mahmudabad’s post as a whole shows no indication of wanting to incite violence or hatred. “He ends [the post] with Jai Hind.”

Justice Kant’s attention turned towards the FIR filed by the Haryana Women’s Commission, which alleged that Mahmudabad’s comments caused public mischief and was an insult to the modesty of women. Justice Kant pointedly asked Additional Solicitor General, S.V. Raju, counsel for the Haryana Police, to highlight sentences written by Mahmudabad which offended women officers in the Indian Army. Raju seemed to evade the question, and instead diverted the Court’s attention to ensuring that copies of the petition are shared with his team. 

Justice Kant expressed his discomfort with the students and professors expressing their solidarity with the jailed professor. He warned against the making of “irresponsible statements,” reminding the academic community that they are “not outside [the Court’s] jurisdiction.”

Directions given by the Court

The two-judge Bench granted interim bail to Mahmudabad clarifying that their decision was motivated by wanting the investigation to run smoothly.

Justice Kant ordered Mahmudabad to surrender his passport, and desist from making any social media posts on the Pahalgam massacre or Operation Sindoor. “The petitioner shall not write any online post, article or shall not make any oral speech related to either of the two 2 online posts, which are subject-matter of the investigation”, the order reads. He made it clear that there was no reason to stay the investigation against Mahmudabad.

Justice Kant directed the Haryana Director General of Police to constitute a Special Investigation Team (SIT) of three Indian Police Service officers (who don’t belong to Haryana or Delhi). He added that one member of the SIT must be a woman. 

The SIT was directed to probe into the allegations within the next 24 hours. It is tasked with “holistically understanding the complexity of the phraseology employed and for proper appreciation of some of the expressions used in these two online posts”.