India, May 23 -- The proceedings in the Supreme Court of India involving the social media posts of Ali Khan Mahmudabad, a professor at Ashoka University in Haryana, have raised some important questions. On Facebook, Mahmudabad had praised the conduct of the Indian Armed Forces during the recent military confrontation with Pakistan, while also noting the futility of war and its human cost. He had gone on to observe that the Army's decision to front Colonel Sofiya Qureshi in its public briefings was an important symbol of Indian pluralism, but that without accompanying substantive action to address violence against Muslims risked being reduced to optics. Following this, FIRs were filed against Mahmudabad, he was taken into police custody for a few days, and then, sent to prison. His laptop was confiscated (and continues to be so at the time of writing). He approached the Supreme Court, asking for his release and for a suspension of the proceedings against him. Before the Supreme Court, the oral arguments focused on the nature and the content of Mahmudabad's expression. His counsel insisted that the Facebook post was a straightforward instance of patriotism, in that it advanced unstinting support for the nation and the armed forces, even as it gently noted a possible gap between the ideals India aspired to, and parts of contemporary Indian reality. The Court, however, appeared not to be convinced. It suggested that Mahmudabad may have been engaging in "dog whistling," with his words carrying a double meaning, and that it was unnecessary for him to write such posts at a time like this. Although the judges ended the hearing by granting Mahmudabad interim bail, it set harsh conditions: The Court gagged him from commenting on the India-Pakistan conflict and ordered him to surrender his passport. These directions, naturally, have far-reaching effects on Mahmudabad's rights to free expression and freedom of movement. However, this did not seem to weigh too heavily with the Court, which questioned why rights had been "distributed" all these years without accompanying "duties". Additionally, the Court constituted a three-member police Special Investigation Team (SIT), which would examine Mahmudabad's posts to glean their "double meaning," if any. As this columnist has previously noted, while commenting on the proceedings involving Ranveer Allahbadia, judicially imposed gag orders are beyond the competence of the Supreme Court. Therefore, instead of critiquing such orders for their substance, it is important to point out that the judiciary does not have the power to gag or silence someone; it is only empowered to determine whether the government's decision to do so is constitutional or unconstitutional. Here again, we see a judicially imposed gag order that is not backed up by legal reasoning. Instead of indicating what, in Mahmudabad's post, potentially breached the law, the Court left this issue to be addressed subsequently by the SIT - but in the meantime, gagged Mahmudabad in any case. The constitution of the SIT, however, raises another question about the substance of Mahmudabad's speech. This question is whether the Constitution requires us only to speak patriotically, and that, therefore, can "unpatriotic" speech attract criminal legal consequences such as jail time. The Constitution does not, however, do any such thing. The grounds for restricting speech and expression are carefully set out under Article 19(2) of the Constitution, and none of them compel patriotism, or stipulate that only patriotic speech is worthy of being protected by the Constitution. There are good reasons for this. A word such as "patriotism" is inherently malleable and subject to many interpretations. As far back as the 18th-century English polymath Samuel Johnson noting that "patriotism is the last refuge of the scoundrel", people have attempted to separate the "real" patriots from those who are using patriotism as an unprincipled shield. Such an attempt is always fraught with difficulties, and risks sanctioning the abuse of power. But furthermore, like love, "patriotism" is not something that can be forced or compelled. And just like love, forced patriotism is a contradiction in terms; patriotism loses its meaning unless it is freely willed. Every nation-State will have people who are either alienated from it or those who question the very idea of nation-States (it is worth remembering that the nation-State is not a transhistorical concept and is not more than 500 years old). The Constitution consciously chooses not to criminalise thoughts, emotions, feelings, and speech, whether patriotic or unpatriotic - unless they amount to incitement to violence or public disorder. And this need not be so: in 1933, with the shadow of World War II looming, and after a fiery debate, the Oxford Union passed a motion titled "this House will under no circumstances fight for its King and country". Winston Churchill chafed and seethed in Parliament, but wisely, that was all he did. He did not attempt to criminalise Oxford's students and further alienate them from their country, and the Oxford Union motion made no difference to Britain entering - and eventually winning - World War II. The point, therefore, is that the Constitution prohibits us from using our right to free speech to incite violence or disorder, but it does not compel us to speak only patriotically. The framers of our Constitution were wise enough to understand that matters of deep disagreement and debate cannot be criminalised out of existence. Thus, even as we affirm Mahmudabad's patriotism, we must add that his freedom ought not to be dependent upon a finding that he wrote a patriotic post, but rather, that he legitimately exercised his right to freedom of expression under the Constitution. One would hope that when the SIT - and eventually the Court -considers this case further, this fundamental principle will be recognised and reiterated....