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The Supreme Court’s order in Ali Khan Mahmudabad vs State of Haryana does a lot of things. It refuses Mahmudabad’s request that the FIRs against him – registered in response to a Facebook post about Operation Sindoor – be stayed. It grants Mahmudabad interim bail so that he can “facilitate the ongoing investigation” (against himself). It directs the constitution of a three-member Special Investigation Team [“SIT”] of police officers to further investigate his Facebook post(s). It gags Mahmudabad from expressing any opinion on the recent India-Pakistan conflict. It confiscates his passport.
One might expect that such a far-reaching order – that effaces two Article 19 rights (freedom of expression and freedom of movement) – would be supported by equally strong reasoning. One might expect the Court to explain why a Facebook post that fulsomely praised the Indian Armed Forces, before going on to gently suggest that the optics of having a Muslim woman police officer address the army’s press conference would remain only optics without addressing violence against Muslims, merits this judicial response of blood, thunder, and steel. One would search in vain. In its two-page order, the Supreme Court does not consider the substance of the allegations against Mahmudabad, and whether his Facebook post, on a plain reading, meets the ingredients of the offences that he has been accused of (and imprisoned for).
Instead, it appears that this is the task of the SIT. The Court says that it is setting up this SIT “to holistically understand the complexity of the phraseology employed and for proper appreciation of some of the expressions used in these two online posts.” So will we have three earnest police officers sitting at a desk with a colour printout of Mahmudabad’s Facebook post on one hand, and a copy of Stanley Fish’s How to Write a Sentence; and How to Read One on the other, as they work diligently to extract the “holistic understanding” of Mahmudabad’s text? If so, watch out for malapropisms! Perhaps the Court should have added a literary critic to the mix? Perhaps, if the Court had a sense of humour, it may have taken note of Terry Eagleton’s re-imagination of Oscar Wilde’s trial, where Eagleton has the great artist demand that “I … be defended by metaphysicians rather than by lawyers, and that my jury should be composed of my peers – namely, poets, perverts, vagrants and geniuses” – and tweaked the composition of the SIT accordingly. Always with the police officers, of course.
In the absence of legal reasoning in the order, then, we must look to the informal record of the oral proceedings to reconstruct what might have been going on in the Court’s mind. On a perusal of the informal record, we find the Court observing that Mahmudabad’s post may have amounted to a “dog whistle.”
Now, a dog whistle requires three things: first, a whistle. Secondly, a bunch of dogs who are able to hear the whistle when it is whistled at dog ear-frequency. And thirdly, all the non-dogs who can’t hear the whistle. And if Mahmudabad’s post was indeed a dogwhistle (and therefore a breach of law), then it behooves the Court to inform us which part of it was the whistling, who are the dogs that the whistle wanted to attract, and who are all the non-dogs who wouldn’t be able to hear a thing. But the Court does not do so, so we are left in the dark. Later on, according to the informal record, the Court notes that “somebody with an analytical mind, will be conservant (sic) of the language….the words used, left on north side, will target the south side…some words have double meaning…”
Who is the “south side” that is being targeted, and which of the words have a “double meaning”? Presumably, the SIT will tell us. But at this stage, we may very gently suggest that if Mahmudabad used his analytical mind to issue such an incredibly subtle dog whistle that we need three police officers to tell us where the whistle was and who the dogs were, then it was very clearly a really terrible dog whistle. You might as well close the case on grounds of incompetence.
Having hit a wall in our perusal of the informal oral record, there is, however, one further level of abstraction that we can zoom out to: we can look at how Mahmudabad’s lawyers framed his case, because – presumably – it was this framing that the Court wasn’t convinced by. Mahmudabad’s lawyers argued that the Facebook post was nothing other than an instance of unvarnished patriotism: it was, before all else, patriotic speech, and therefore didn’t deserve to be punished.
There are entirely understandable reasons why Mahmudabad’s legal team would present his arguments in this way, but as observers, we do not operate under the same constraints. It is therefore important to examine the premises of this argument. Does the Constitution proscribe “unpatriotic” speech? Let us look at the constitutional text: specifically, Article 19(2). It immediately becomes clear that the Constitution does not proscribe unpatriotic speech, no matter what our personal views on the subject.
The reasons for this are two-fold, and they are important. First, what constitutes “patriotism” is deeply subjective, and not at all susceptible to judicial standards – certainly not enough to imprison a man over. Samuel Johnson’s famous line, “patriotism is the last refuge of the scoundrel,” his own attempt to separate the “true” patriots from the “false” ones, bears testament to that. But secondly, the concept of patriotism (and nationalism) have been contested for a very long time. E.M. Forster famously wrote “I hate the idea of causes, and if I had to choose between betraying my country and betraying my friend I hope I should have the guts to betray my country.” Aware of the unconventional nature of this view, he went on to elaborate: “such a choice may scandalize the modern reader, and he may stretch out his patriotic hand to the telephone at once and ring up the police. It would not have shocked Dante, though. Dante places Brutus and Cassius in the lowest circle of Hell because they had chosen to betray their friend Julius Caesar rather than their country Rome.” More recently, the great Serbo-Croat writer, Dubravka Ugresic, who had had personal experience of the horrors of a nationalist war, directly critiqued the concept of patriotism in her memoir.
The point is not whether we agree with Forster or Ugresic, but the point is the Constitution very sensibly does not outlaw “unpatriotic” speech: it, and the framers, recognised that it is futile to try and criminalise contested concepts out of existence. I believe this point important to make, because sometimes the effect of good legal strategy in a particular case can be to narrow the bounds of constitutional rights and freedoms for all other cases. In our desire to affirm Mahmudabad’s patriotism, thus, it is equally necessary to affirm that the Constitution is not in the business of compelling patriotism; it only steps in where speech constitutes incitement to violence or public disorder, and not before.
I must therefore respectfully suggest that the Supreme Court’s order may not be entirely correct in law. The reasons for the constitution of the SIT are puzzling. The gag order is outside the Court’s jurisdiction. The confiscation of the passport appears excessive. In the meantime, it is reported that Mahmudabad’s laptop has been confiscated, and one therefore hopes that the Court’s order does not become an excuse for a roving and fishing enquiry by the police, going beyond the remit of the FIR.
All this, for a Facebook post.
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