New Delhi, 21 May

The Supreme Court on Wednesday granted interim bail to Ashoka University professor Ali Khan Mahmudabad, arrested for his contentious social media posts on Operation Sindoor, but refused to stay the investigation against him.

A bench of Justices Surya Kant and N Kotisar Singh directed the Haryana director general of police to constitute a three-member special investigation team (SIT) headed by an inspector general (IG) rank officer also including a superintendent (SP) rank woman officer within 24 hours to investigate the case.

The top court said the interim bail was granted to the petitioner to facilitate further investigation and directed Mahmudabad to surrender his passport.

The SIT, the bench said, should comprise three directly recruited IPS officers -- not from Haryana but serving in the state.

The bench said aside from the IG rank officer, two others should be police superintendents or above rank officers.

The bench, which examined the online post by the professor, who heads the political science department in the Sonipat-based Ashoka University, questioned his choice of words, saying they were used deliberately to humiliate, insult, or put others in discomfort.

"The choice of words are deliberately made to insult, humiliate or cause discomfort to others. The professor, who is a learned person cannot lack a dictionary...he could have conveyed the very same feelings in a simple language without hurting others. He should have shown respect for the sentiments of others. He could have used a simple and neutral kind of language, respecting others," Justice Kant said.

The bench said though everybody had the right to freedom of expression, Mahmudabad's remarks seemed like "dog whistling," used in legal parlance.

"This is what we call it as dog whistling in law. He should have used more respectful and neutral language," the court said.

The bench told his lawyer, senior counsel Kapil Sibal, "At the time when so many things were happening in the country, where was the occasion for him to use these kinds of words which could be insulting, humiliating, and putting others in discomfort? He is a learned man, he cannot be said to be short of words."

The bench went on to restrain the professor from posting on the recent India-Pakistan conflict any further and asked him to cooperate with the SIT investigation.

It also restrained him from posting on the Pahalgam terror attack.

"Everybody has a right to express himself. But is it the time to talk of it this much communal...? The country has faced a big challenge and is still facing it. Some monsters have come all the way from other jurisdictions and attacked innocent people. Entire country is staying united. But at this juncture… Why make such statements? Just to gain cheap popularity on this occasion?" Justice Kant said.

Sibal agreed that it was not the occasion for making such comments but said the remarks needed to be viewed in a way that there was no criminality involved in those remarks.

The bench referring to the reactions over Mahmudabad's arrest said, "Everybody is talking about fundamental right of speech and expression. This right is not absolute… As if the country for the last 75 years was distributing rights."

The judge said while some of it was not offensive to the nation, the moment Mahmudabad began opining, his words turned "communal" with a "double meaning".

Sibal argued the professor's remarks had no "criminal intent" and highlighted the post ended with "Jai Hind" indicating its patriotic nature.

Seeking relief, Sibal said the professor was in judicial custody and had a nine-month pregnant wife.

The bench told Additional Solicitor General SV Raju, appearing for the Haryana, that the bonafide of the comments were the subject matter of investigation for it appeared he was anti-war as he had said families of the Army personnel and civilians in border areas were going to suffer.

"Some words appear to have double meanings," Justice Kant said.

Raju said that the post as it appeared was not as innocent as projected by Sibal.

The bench referred to some newspaper reports on university students and the faculty protesting and said, "If they dare to do anything, we will not accept this, if they try to join hands, etc., we know how to deal with these people; they are within our jurisdiction."

A Sonipat court on 20 May sent Mahmudabad to judicial custody till 27 May after the completion of his two-day police custody.

Haryana Police arrested Mahmudabad on 18 May after two FIRs were registered against him. His contentious social media posts on Operation Sindoor, it is alleged, endangered the sovereignty and integrity of the country.

The two FIRs -- one based on a complaint by the chairperson of Haryana State Commission for Women, Renu Bhatia, and the other on a complaint by a village sarpanch -- were lodged by Rai police in Sonipat district.

"On the Commission chairperson's complaint, the FIR has been lodged against Professor Ali of Ashoka University under BNS sections 152 (acts endangering sovereignty or unity and integrity of India), 353 (statements conducing to public mischief), 79 (deliberate actions aimed at insulting the modesty of a woman) and 196 (1) (promoting enmity between different groups on grounds of religion)," police said.

Several political parties and academicians have condemned the arrest.