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: Gautam Bhatia
Supreme Court Observer
At around noon on Wednesday, in the Supreme Court’s Court Room 2, Justices Surya Kant and N.K. Singh were hearing Senior Advocate Kapil Sibal read out the contents of a Facebook post. Its author is Ali Khan Mahmudabad, a political science professor at Ashoka University. The post is a short commentary on how Operation Sindoor has reset the India-Pakistan equation, and also points out how “deep communalism has managed to infect the Indian body politic.”
Yogesh Jatheri, a sarpanch from Haryana and a general secretary of the Bharatiya Janata Party’s Yuva Morcha, filed an FIR against Mahmudabad for this post. Another FIR was filed by the Haryana State Commission for Women. Mahmudabad is charged with “endangering the country’s sovereignty, unity and integrity,” “promoting enmity between different groups,” causing “public mischief” and “insulting the modesty of a woman.” Mahmudabad challenged these FIRs and his arrest.
In court, his lawyer Sibal argued that the post is “highly patriotic”: the professor lauds the Indian Armed Forces for not targeting “military or civilian installations or infrastructure” and for ensuring that there was “no unnecessary escalation.” He has also condemned the “mindless” advocacy for war by some, pointing out that it is “the poor who suffer disproportionately.”
He then calls on “right wing commentators” who applauded Colonel Sophia Qureshi’s appearance at the press conference to demand, “equally loudly”, that victims of “mob lynchings, arbitrary bulldozing and the BJP’s hate mongering be protected as Indian citizens.” Even as he laments the “grassroots reality that common Muslims face,” the professor notes that the “press conference shows that an India, united in its diversity, is not completely dead as an idea.”
“Where is the criminal intent?” Sibal asked the Court, “The post ends with ‘Jai Hind’.”
Mahmudabad got interim bail. The Court took special efforts to clarify that the Order was only to facilitate the investigation. It’s as if the Court was ensuring that its grant of bail was not construed as disapproval of the arrest. But the professor was asked to surrender his passport and also gagged from writing about the Pahalgam massacre or Operation Sindoor. Further, a Special Investigation Team—headed by an Inspector General of Police—was set up “to holistically understand the complexity of the phraseology employed and for proper appreciation of some of the expressions used.”
This is as far as the reasoning in the Order went. No part of the 400-word Order explained the linguistic “complexity” at hand. Some floaty clues to understand what the Court saw in the post came from Justice Kant’s remarks during the hearing. He suggested that the post was made “deliberately to insult, humiliate or cause discomfort.” He didn’t really explain which words had this effect.
When he asked S.V. Raju to point out the words which insult the modesty of a woman, the Additional Solicitor General vaguely responded that Mahmudabad had made “some” comments against Colonel Qureshi. One guess is that he was referring to the part of Mahmudabad’s post where he says that the “optics of two women soldiers” leading the press conference “must translate to reality on the ground.” The ASG then quickly pivoted the Court’s attention to some paperwork.
When Sibal explained that Mahmudabad’s post speaks of the failings of the Pakistani government, Justice Kant said: “But some words have double meaning also.” The Order itself says nothing about hidden meanings.
The Court wins the public’s allegiance and trust through reasoning. When a university professor is imprisoned for a social media post, there is a high premium on such judicial reasoning. Reasoning allows us to follow the Court’s thinking, discover its research and influences. It helps us make sense of the law and its imperatives, even if we don’t agree with the outcomes. The least we can expect is a serious engagement with logic and the law. In Mahmudabad’s case, as the SIT splits hairs over the Facebook post, we are left wondering just why the Bench chose to go down this path.
— Gauri Kashyap, Associate Editor
P.S: This week, we released Volume 5, Issue 3 of the Supreme Court Observer Law Reports (SCO.LR) covering five key judgements from 15-21 May 2025. Read the Issue here.
HOW TO READ A SENTEN𝐂𝐄: 𝐓𝐡𝐞 𝐒𝐮𝐩𝐫𝐞𝐦𝐞 𝐂𝐨𝐮𝐫𝐭’𝐬 𝐎𝐫𝐝𝐞𝐫 𝐢𝐧 𝐌𝐚𝐡𝐦𝐮𝐝𝐚𝐛𝐚𝐝’𝐬 𝐂𝐚𝐬𝐞.
𝑩𝒚 Gautam Bhatia
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 army 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.
(𝑀𝑎𝑦 21, 2025)
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