By Karan Thapar / The Wire

One of the illustrious former judges of the Supreme Court has said he cannot understand why Mohammed Zubair was arrested and, equally, why he was not immediately granted bail by the court.

Asked by The Wire if Mohammed Zubair is the victim of prejudicial handling by the Delhi police, Justice Deepak Gupta said: “Definitely, there is no doubt about it”.

In a 20-minute interview to Karan Thapar for The Wire, Justice Gupta first spoke about Zubair’s arrest.

He said: “I’m a bit worried and confused why he has been taken into custody at all. The incident happened in March 2018, four years have lapsed and there is no indication his tweet led to any dispute between two communities.”

Zubair has been arrested under Sections 153A and 295A for promoting enmity and outraging religious feelings.

Justice Gupta equally importantly added: “I am more worried by the fact the Court refused to grant him bail. The judge should have asked the police if you didn’t arrest him for four years and nothing untoward happened during that time why do you need to take him into custody now?”

Justice Gupta agreed that his comments meant he could not understand either why Zubair had been arrested or denied immediate bail.

Commenting on the fact that Zubair was arrested for a tweet posted in 2018, which carried a shot from a Hindi film Kissi Se Na Kehna, which was cleared by the Censor Board and repeatedly shown on TV, Justice Gupta said: “We are turning into an intolerant society.” He said “I have seen the tweet and at best it can be said to be not proper but it’s not offensive.”

Speaking about other tweets by Zubair which the police, according to news report, are enquiring into, some of which are satirical riffs or direct quotes from people like Adityanath or former Tripura Chief Minister Biplab Deb, Justice Gupta said: “You can’t arrest to collect evidence but only when a case is made out against him”.

He added: “And (even) then why should there be an arrest in every case.” He agreed this felt like a fishing exercise.

Speaking directly about the police handling of the Zubair case Justice Gupta said: “Somehow I feel he’s being targeted” adding “something (is) amiss”.

Comparing the treatment of Mohammed Zubair with that of Nupur Sharma and Naveen Jindal, all three of whom have been charged with Sections 153A and 295A, but only Zubair  has been arrested and not the other two, though weeks have lapsed since they were charged, Justice Gupta was asked if this is another indication of police prejudice and answered: “definitely” adding “there’s no doubt about it”.

Justice Gupta told The Wire “If we have to survive as a democracy we must secure freedom of speech”. Justice Gupta said the courts should look into the question of compensation for such (wrongful) arrests and that compensation should be “on such a scale” the police thinks twice before they repeat their behaviour.

However, Justice Gupta did not think a formal enquiry into the police handling of Zubair would make any difference because such enquiries go on for a long time and tend to be ignored.

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