On May 21, the Supreme Court granted interim bail to Professor Ali Khan Mahmudabad in connection with two FIRs registered against him for allegedly offensive social media posts. A professor at Ashoka University, Mahmudabad wrote a post on Facebook voicing his views on the military strikes conducted by the Indian defence forces on terror sites in Pakistan. He criticised the official press briefings, calling them a performance of religious unity that failed to reflect the ground realities. However, in another post, he advocated for peace and denounced warmongering. 

These posts led to registration of FIRs and his arrest for the offences punishable under sections 196(1)(b) (actions disturbing the harmony between different religious groups), 197(1)(c) (publications inciting enmity or hatred among religious communities), 152 (acts endangering the sovereignty, unity and integrity of India) and 299 (deliberate and malicious acts intended to outrage religious feelings) of the Bharatiya Nyaya Sanhita (BNS), 2023.

While granting interim bail to Mahmudabad in relation to these offences, the Supreme Court imposed a condition that he shall restrain himself “from expressing any opinion in relation to the terrorist attack on Indian soil or the counter response given by our informed sources.” 

Also read: Learning Against The Grain: Perspectives from Ali Khan Mahmudabad’s Former Students

Although courts are empowered to impose conditions on bail to ensure justice, such conditions must be reasonable and proportionate. The condition imposed upon Mahmudabad, on the other hand, is egregiously unreasonable and disproportionate and totally restricts him from exercising his freedom of speech and expression, guaranteed under Article 19 of the Constitution, when it comes to sharing his thoughts about the recent military actions between India and Pakistan.

Bail conditions: Purpose and limits

Over the years, the Supreme Court has established clear jurisprudence regarding conditions for granting bail in non-bailable offences. Once a court decides to release an accused from jail or custody, it typically sets terms and conditions such as furnishing a bail bond to ensure the presence of the accused before the court in future, failing which the bond stands forfeited. While imposing conditions, the courts can also restrict the liberty of the accused – surrendering a passport, limiting travel or reporting regularly to the police. These conditions are meant to secure the accused’s presence at trial and ensure a fair judicial process – preventing evidence tampering or witness intimidation.

But an absolute ban on a professor on speaking about the recent military action which is a matter of public interest, for something that is not inherently criminal unless it crosses specific legal thresholds, is deeply troubling. It raises serious concerns about the erosion of constitutional freedoms in the guise of procedural safeguards and undermines the democratic nature of the Indian constitution.

Disproportionate restrictions and constitutional concerns

India allocated Rs 6.81 lakh crore to the defence ministry for financial year  2025, comprising 13.45% of the Union budget. Public discourse on such military actions, therefore, is undeniably a matter of national importance. Silencing voices of critique or dissent on these subjects, risks transforming democratic engagement into unilateral monologue.

In Parvez Noordin Lokhandwala v. State of Maharashtra, while holding that bail conditions must not be disproportionate to the purpose of imposing them, the Supreme Court had reasoned that the human dignity and constitutional safeguards must not be rendered illusory through excessive restrictions. Conditions imposed should serve one of three aims: securing the presence of the accused, aiding the investigation, or ensuring a fair trial. The condition imposed on Mahmudabad fails to meet any of these benchmarks.

This leads to a larger question – are similarly sweeping restrictions imposed on white-collar accused? Are bank officials who have been accused of approving loans unlawfully and facilitating money laundering restricted by the courts from working in the banking sector? Are bureaucrats who have been accused of accepting bribes for issuing licenses restricted by the courts from issuing further licenses? Are corrupt politicians restrained from participating in politics during grant of bail? If maintaining religious harmony is of national interest, so too is addressing financial corruption and systemic economic fraud.

Precedents of free speech protections

The Supreme Court order contradicted its own earlier decision of a three-judge bench in Mohammad Zubair v. State of NCT of Delhi, in which a journalist was granted bail despite facing charges for tweets allegedly triggering religious sentiments. In that judgement, while emphasising on Article 19(1)(a) of the Constitution which guarantees freedom of speech and expression, the apex court had explicitly declined to impose a blanket gag order that bars the journalist from publishing tweets on the social media platform while on bail, cautioning that such restrictions would have a chilling effect on free speech. It affirmed that the journalist is rightfully entitled to express his opinion as an active participating citizen.

Similarly, in another case of Siba Shankar Das, the Supreme Court ruled that requiring a former mayor and political figure to abstain from engaging in any political activities as a condition for granting bail would violate fundamental and constitutional rights. These cases underscore the judiciary’s role in safeguarding individual rights against overbroad bail conditions that infringe upon constitutional freedoms.

It is startling to see such a condition imposed by the Supreme Court on Mahmudabad while granting bail, especially in light of its recent judgment in Imran Pratapgadhi’s case (March 2025), which highlights the top court’s transformative stance on the freedom of speech and expression, particularly concerning political opinions shared on social media. In that judgment, the court emphasised that FIRs must not be misused as tools of harassment against individuals who express dissenting views on government policies.

A dangerous precedent

Some may argue that the condition in Mahmudabad’s case does not constitute binding precedent. However, such directions, especially when issued by the apex court, set a tone that filters down to lower courts. For individuals from marginalised communities without the resources to approach the Supreme Court, such gag orders can have lasting, chilling effects.

In a democracy, dissent is not disorder, it is a fundamental right. The Supreme Court’s condition risks redefining the limits of lawful speech and undermines the very freedoms it is meant to protect. If bail conditions are allowed to serve as tools of suppression rather than procedural safeguards, the core values of our constitution stand threatened.

Ayush Singh is a practicing advocate at the Bombay High Court.

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