Narsinghanand Case | 'Zubair's Tweets Apparently Within Freedom Of Speech But Probe Can Reveal If Offences Made Out': Allahabad HC

Refusing to quash an FIR lodged against Alt News co-founder Mohammed Zubair over his tweets ('X' posts) on the 'controversial' speeches of Yati Narsinghanand, the Allahabad High Court on Thursday observed that while Zubair's posts do not appear to be violating freedom of speech and expression, it was only through an investigation that it can be determined whether any offence, as alleged, is made out against him."The Court finds that the "test of fire in a crowded theater" would not apply in the instant case. Also, the Court is of the view that the statements which were made by the petitioner though apparently were such that they were not in any manner violating the freedom of expression and speech but what inputs the State had one does not know and whether an offence was being made out, only an investigation could reveal," a bench of Justice Siddhartha Varma and Justice Dr. Yogendra Kumar Srivastava observed.For context, the test (Shouting 'fire' in a crowded theatre) was invoked by Justice Oliver Wendell Holmes in the 1919 case of Charles T. Schenck vs. United States of America, which addresses the limitations on free speech. It primarily defines the boundaries of the right to freedom of speech and expression, particularly concerning actions that fall outside its scope.The Allahabad HC referred to this analogy as the Additional Advocate General Manish Goyal argued that Zubair created a narrative through his X posts and attempted to incite the public, and thus, his actions were not protected under his right to freedom of speech and expression.In its 37-page order, the Court said that while Zubair, through his tweets, was 'definitely' trying to convey the gist of Narsinghanand's speech and wanted the State to act against the Dasna priest, it was for the investigating agencies (and not for the Court) to judge whether in this process any offence was committed by him."If a person felt that police was not taking action and was expressing disapprobation of the measures taken by the administration then definitely he could express the same but whether those expressions excited secession or armed rebellion or could encourage feelings of separatist activities and as a result endanger sovereignty or unity of the country, could be looked into and judged by the investigating agencies alone…The investigating agencies would be better equipped in these days with modern technologies to look into the allegations made," the court observed. The Court noted that Zubair, the co-founder/owner of a fact-checking website (Alt-News), is an influential person, and his tweets, if misunderstood by a certain section of society, would definitely affect a 'fairly large number of people' in the country. However, the Court added that it had no scale by which it could fathom as to how much the effect of his tweets would be on the population of the country and that it was the job of the investigating agencies to make inquiries in this regard.In this regard, the Court also observed that India is a country with a variety of religions, tribes, and races, all of which have merged together and are living peacefully. The investigating agencies would have to look into whether Zubair was exercising restraint.The division further observed that the FIR, on a plain reading, disclosed that the alleged offences were made out against him to a 'large extent'.It, however, refrained from interfering in the case and left it to the 'sagacity' of the Investigating Agency to come to a proper conclusion, including whether the offence under Section 152 BNS [acts endangering the sovereignty or unity of India] was attracted against him. "Definitely the provisions of section 152 BNS are a shield for the State against any kind of seditious activity of any individual. Whether it was being used to gag the voice of anyone commenting on the way the State was functioning would again be a subject matter of investigation", it remarked. The Bench also added that there was a possibility that the allegations made in the FIR could be found false by the Investigating Agency, and therefore called for both a 'subjective' and an 'objective' probe into the matter.“Investigation in this case is to be done both subjectively and objectively. A lot many psychological angles would have to be looked into. Not only that, the sociological built of the country would also have to be looked into. We are definitely of the view that a false implication might prejudice the rights as are guaranteed to an individual under Article 21 of the Constitution of India,” the bench remarked.It may be noted that in its order, the Court extended the interim protection against arrest to him during the course of the investigation while restraining Zubair from leaving the country pending investigation in the case. The Court gave this protection to Zubair to ensure that no injustice is caused to him in the event he is found to be innocent after the investigation. The Court also...

Narsinghanand Case | 'Zubair's Tweets Apparently Within Freedom Of Speech But Probe Can Reveal If Offences Made Out': Allahabad HC

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