The right to speak freely

Prof. Ali Khan Mahmudabad is out on bail but his lips have been sealed. The interim bail order is a big relief — he is out of Sonipat jail, and can now be with his wife and family. But the court has barred him from speaking on the issue he had raised in his social media posts, for which he was charged with sedition and other crimes. His passport has been seized and an SIT constituted under the DGP of Haryana. The SIT has been tasked with decoding the language and intent of Ali Khan’s post. The professor must ‘facilitate’ the investigation.

Justice Surya Kant made several disturbing observations that even senior jurists have found problematic. As senior advocate Kapil Sibal quoted verbatim from Ali Khan’s Facebook post, Justice Surya Kant first said that the professor should have exercised caution in these difficult times.

He was not persuaded by the argument that Ali Khan was exercising his right to freedom of expression.

For the last 75 years, Justice Surya Kant said, we have been “distributing only rights and nobody cares about duties”; that Ali Khan’s posts were a “dog whistle”; that his words had “double meanings”; that he said something but meant something else. Then, without any provocation or real context, he threatened the students and faculty of Ashoka University to desist from taking to the streets or any other form of protest — or face the wrath of the court.

Justice Surya Kant’s observations have serious implications for free speech, already under severe strain in India. The police and lower courts might be guided by his observations and come down even more heavily on any criticism of the State.

The order of the Supreme Court does give relief to Ali Khan, who was first sent to police custody and then remanded to judicial custody by a court in Sonipat. His laptop and other devices have been seized.

His ordeal began on Sunday morning, when Haryana police arrested him from his residence in Delhi. He was brought straight to Sonipat without a transit remand, then taken back to Delhi and then brought back. It shows how our police can harass a citizen despite clear and strict orders from various courts to follow procedure while detaining or arresting someone.

The Sonipat court delivered its order at 8.00 pm on Sunday, more than 12 hours after Haryana Police picked up Ali Khan from his home in Delhi at 7.00 am. The arrest was made following an FIR registered at Rai police station in Sonipat at 8.00 pm the previous day. The FIR was filed by a BJP official.

Note the promptness of the police action: an FIR is filed at 8.00 pm and the police are at the door of the ‘accused’ — in another state — at 7.00 the next morning. How often have you seen the Indian police being so prompt in a crime case? How easy is it to get an FIR registered in an Indian police station? Ask a rape survivor.

The action by the police on a Sunday morning also meant that no court could be immediately approached for relief, that Dr Ali Khan would have to spend at least one full day in custody. That’s the pleasure the Indian police takes in depriving people of their liberty.

Yes, there was an FIR. What the police could have done was summon Dr Ali Khan for interrogation by sending a warrant. Instead, they decided to arrest him. Whisking him off to Haryana from Delhi, without obtaining a transit remand, was a form of kidnapping — an illegal act, as per previous rulings of the Delhi High Court and the Supreme Court. We Indians are inured to arbitrary, overreaching police action; Dr Ali Khan could hardly expect better. The police wouldn’t slow down just because he is a professor at an elite institution. And how could he forget that he is a Muslim?

The FIR against Ali Khan apparently mentions that a BJP leader was ‘deeply hurt’ by something he said about Operation Sindoor. Evidently the Sonipat police found the complaint valid, and perhaps basis enough to charge Khan with spreading ‘religious animosity among different groups’, ‘disrupting national unity’, ‘violating the sovereignty of the nation’, ‘inciting religious sentiments’ and ‘sedition’. Surely, Khan couldn’t roam free after committing such serious offences?

What did Dr Ali Khan say in his Facebook post that so upset the BJP functionary?

Apparently this: ‘I am very happy to see so many right-wing commentators applauding Colonel Sofiya Qureshi, but perhaps they could also equally loudly demand that the victims of mob lynchings, arbitrary bulldozing, and others who are victims of the BJP’s hate mongering be protected as Indian citizens. The optics of two women soldiers presenting their findings is important, but optics must translate into reality on the ground; otherwise, it’s just hypocrisy.’

What in this post has the potential to incite hatred between communities or hurt the sentiments of a religious group?

Dr Ali Khan also wrote: ‘For me, the press conference was just a fleeting glimpse — an illusion and allusion perhaps — to an India that defied the logic on which Pakistan was built. As I said, the grassroots reality that common Muslims face is different from what the government tried to show. But at the same time, the press conference shows that an India, united in its diversity, is not completely dead as an idea.’

What in this comment threatens India’s sovereignty? And how can anyone, if they are reasonable, conclude that these comments are seditious?

What Dr Ali Khan wrote has been echoed by many others over the past few weeks. It was surprising, to say the least, to see a Muslim official appear as a spokesperson in the defence briefing. The appointment was so extraordinary that everyone must have noticed; many praised the government too. When Dr Ali Khan said this symbolism must be transformed into the everyday reality of Muslims in India, that they should be able to live with dignity in India, he was only saying what many others have said before him.

There is only one reason why his statement is being treated as a crime — Dr Ali Khan is a Muslim. Being a Muslim in India today seems like a crime in itself. A Muslim becomes even more dangerous when he thinks independently and dares to express those thoughts.

If you are a Muslim In India today, you do not have the right to express your opinions freely. Think Umar Khalid, Sharjeel Imam, Khalid Saifi, Ishrat Jahan, Gulfisha Fatima, Meeran Haider, Siddique Kappan… the list is long.

There is another reason to target Dr Ali Khan and that should also be state plainly: he is Muslim elite. He studied abroad, speaks multiple languages, teaches at a prestigious university and comes from a family of nawabs. Going after him is also a coded message to the Muslim community that your social standing will grant you no immunity. Dr Ali Khan’s arrest is, then, a message to all Muslim intellectuals too: your freedom of expression is contingent — on the kind of views you hold.

I don’t know why, but Dr Ali Khan’s arrest reminded me of 2002. I recalled yet another intellectual, Ehsan Jafri, a former MP and Muslim leader who lived in Gulbarg Society in Ahmedabad. Muslims flocked to his home, believing his stature would protect them. But he himself was dragged out of his elite sanctuary and hacked to death by a Hindutva mob. Eyewitnesses reported that amid the frenzy, Jafri called the then chief minister — only to be told, “How are you still alive?”

The proof of life in a democracy is the right to speak freely. Dr Ali Khan’s arrest means that the democratic voice of Muslims has been silenced.

Apoorvanand teaches Hindi at Delhi University. More of his writings can be found here