Passport as Bail Condition: Supreme Court Defers Decision on Prof. Mahmudabad’s Plea Amidst BNS Scrutiny

New Delhi – The Supreme Court has deferred its decision on the return of Ashoka University Professor Ali Khan Mahmudabad's passport, a matter that brings the reasonableness of bail conditions squarely into focus, particularly in high-profile cases involving freedom of speech and the newly enacted Bharatiya Nyaya Sanhita (BNS). The plea, heard by a bench of Justices Surya Kant and Joymalya Bagchi, has been adjourned to November 18, 2025, leaving critical questions about personal liberty and investigative propriety pending.

Professor Mahmudabad, represented by Senior Advocate Kapil Sibal, sought the release of his passport, which he was directed to surrender as a condition for the interim bail granted by the apex court on May 21. The case stems from FIRs filed by the Haryana Police over his social media posts concerning 'Operation Sindoor', leading to charges under various BNS provisions, including the controversial Section 152, which replaces the colonial-era sedition law.

The Hearing: A Debate on Necessity and Proportionality

During the recent hearing, the exchange between the counsel highlighted the core legal issue: the necessity of retaining a passport when the state does not overtly object to foreign travel. Mr. Sibal argued forcefully for the immediate return of the document, stating, "In the meantime, let the passport be returned to him. I don't know why the passport is kept..."

In response, Additional Solicitor General (ASG) S.V. Raju, appearing for the State of Haryana, indicated that the authorities were not fundamentally opposed to the Professor's travel. "If he wants to go abroad, he can give the itinerary," the ASG submitted, clarifying the passport was held purely as a compliance measure for the bail condition.

This concession prompted a sharp retort from Sibal: "If you are not going to object, then give the passport back." His argument implicitly questioned the proportionality of the restriction, suggesting it had become a procedural hurdle rather than a necessary safeguard against flight risk, especially given Mahmudabad's cooperation with the investigation.

The bench, however, opted for a later hearing date, with Justice Kant remarking to Sibal, "You are not going tomorrow itself," and indicating the matter would be listed on a non-miscellaneous day for a more detailed hearing.

Case Background: From Arrest Under BNS to Supreme Court Intervention

The case against Professor Mahmudabad commenced with his arrest on May 18, 2025, under Sections 152 (acts endangering sovereignty, unity, and integrity of India), 196 (promoting enmity between different groups), and other provisions of the BNS. The charges related to his online posts, which the prosecution alleged were prejudicial to communal harmony and national security.

Within three days, the Supreme Court granted him interim bail, but with stringent conditions. These included the surrender of his passport, a directive to fully cooperate with the investigation, and a significant restraint on his freedom of speech—barring him from writing or posting about the subject matter of the FIRs, any terrorist attacks on Indian soil, or the nation's counter-responses.

Crucially, the Court also mandated the formation of a Special Investigation Team (SIT) composed of senior IPS officers from outside Haryana and Delhi to "holistically understand the complexity of the phraseology employed" in the posts, signaling a nuanced approach to the speech-related offenses.

Judicial Oversight and Rebuke of Investigative Overreach

The investigation's trajectory soon became a point of contention. Mahmudabad’s counsel raised alarms that the SIT was exceeding its mandate. During a hearing in July, Mr. Sibal informed the court that the SIT had seized the Professor’s digital devices and was questioning him about his foreign travel over the past decade—details seemingly extraneous to the content of two social media posts.

This led to a sharp rebuke from the bench. In a widely noted remark, Justice Surya Kant told the SIT, "You don't require him (Mahmudabad), you require a dictionary," emphasizing that the probe must be confined strictly to the contents of the posts in question. The Court subsequently directed that Mahmudabad should not be summoned again and ordered the SIT to conclude its investigation within four weeks.

By August 25, the investigation yielded a split result: the Haryana Police filed a closure report in one FIR and a chargesheet in the other. The Supreme Court promptly quashed the FIR with the closure report and, in a significant move, restrained the Magistrate from taking cognizance of the chargesheet in the second FIR. This interim order effectively paused the prosecution, pending further judicial review.

The Lingering Question of Bail Conditions and the BNS Challenge

Despite the quashing of one FIR and the stay on the other, the initial bail conditions, including the surrender of the passport, remained in effect. The Court had previously cited the need for a "cooling-off period" before considering any relaxation. The current plea for the passport's return tests the continued justification for this condition, particularly when the investigative phase concerning the accused is effectively complete.

The case also serves as a crucial, early-stage test for the Bharatiya Nyaya Sanhita. Mr. Sibal has consistently reminded the court that the constitutional validity of Section 152 BNS is already under challenge before a larger bench. The prosecution’s reliance on this provision against an academic for social media commentary has amplified concerns among legal scholars and civil rights advocates that it may be used to stifle dissent, much like its predecessor, Section 124A of the IPC.

Broader Implications for Legal Practice

The Mahmudabad case presents several significant takeaways for the legal community:

• Proportionality of Bail Conditions: It highlights the judiciary's role in ensuring that bail conditions are not punitive and are proportionate to the alleged offense and the risk posed by the accused. The retention of a passport without a specific, articulated risk of flight is a key aspect under scrutiny.

• Judicial Scrutiny of Investigations: The Court’s active supervision of the SIT's conduct serves as a powerful precedent for reining in investigative overreach in sensitive cases. Justice Kant's "dictionary" remark underscores the judiciary's capacity to redirect investigations that stray from their core mandate.

• Navigating the BNS: As one of the first high-profile cases under the new criminal code, it offers a glimpse into how courts will interpret and apply its provisions, especially those concerning speech and national security. The stay on cognizance of the chargesheet indicates a cautious judicial approach pending clarity on the constitutionality of Section 152.

• Academic Freedom and Free Speech: The case remains a bellwether for academic freedom in India. The initial arrest and the subsequent gag order imposed as a bail condition continue to fuel debate on the permissible limits of critical expression by academics on matters of national importance.

As the legal fraternity awaits the November 18 hearing, the outcome of the passport plea will not only determine Professor Mahmudabad's ability to travel but will also send a broader signal about the balance between state power, individual liberty, and the judiciary's role as the ultimate guarantor of constitutional rights in a new legislative era.