Kerala High Court on Friday granted anticipatory bail to Lakshadweep filmmaker Aisha Sultana in a sedition case for her reference to a “bioweapon”, observing that there was “not even a suggestion that the applicant did anything as such against the government of India”.

Justice Ashok Menon pointed out that Aisha “did not have malicious motive to subvert the government” when she referred to a “bioweapon” while speaking on the proliferation of Covid cases in Lakshadweep and that “words cannot be taken in isolation to suggest a motive”.

Participating in a TV debate, Aisha had said a “bioweapon” had been unleashed on the islanders, referring to the Covid outbreak in Lakshadweep after restrictions were eased by administrator Praful Khoda Patel.

The complainant, Lakshadweep BJP president C. Abdul Khader Haji, has claimed that Aisha had referred to the central government while mentioning the “bioweapon”. Aisha had later clarified that she had meant Patel and his decision to lift the standard operating procedures (SOPs) that had helped Lakshadweep keep the coronavirus at bay for a year.

The case had been filed at Kavaratti, the capital of Lakshadweep. Kavaratti police had booked Aisha under IPC Sections 124A (sedition) and 153B (assertions against national integration).

The court pointed out on Friday that the applicant had no criminal antecedents and was not a flight risk. “Prima facie, the offences alleged by the prosecution are not attracted. The applicant has no criminal antecedents. She is not likely to flee from justice…. The prosecution has also not expressed any fear of her fleeing from justice or not cooperating with the investigation,” the court said.

It pointed out that the “decisive ingredient for establishing the offence of sedition… is the doing of certain acts which would bring the government established by law in India into hatred or contempt, etc. In this case, there is not even a suggestion that the applicant did anything as such against the government of India.”

The court said in its order: “The statement made by the applicant in the discussion will have to be taken in its entirety and words cannot be taken in isolation to suggest a motive. After having considered the submissions made on both sides, and also the transcript of the (TV) discussion, it would suffice to say that prima facie, the applicant did not have malicious motive to subvert the government by merely using the strong word ‘bioweapon’ to express her vehemence in disapproval of the subject under discussion.”

“Her intention is explicitly in criticism of the modification of the SOP, introduced by the administrator, forgoing the mandatory provision of subjecting the persons entering the islands to quarantine,” the court added.

Senior lawyer P. Vijayabhanu, who represented Aisha, had argued that his client had made the remark since the decision of administrator Patel in December to lift the protocols that included a mandatory quarantine period for everyone entering the islands had led to the outbreak of Covid in January after almost a year when Lakshadweep had zero cases.

The court expressed doubt whether even Section 153A would be applicable in the case. “There is no apparent indication in her statement which amounts to imputations or assertions prejudicial to the national interest, nor does it propagate any class of persons against another group of persons. It is therefore doubtful whether the penal provisions of Section 153A would be attracted in this case.”The court noted that the plea was not for quashing the charges, nor was it going into the merits of the case. “This is an application for anticipatory bail and not a petition for quashing the proceedings under 482 CrPC. Neither is this court finally deciding the prosecution case on its merits.”

The court said custodial interrogation was also not desirable due to the pandemic.

“Custodial interrogation of the applicant and her incarceration in prison, particularly in these pandemic times, may not be required.”

The anticipatory bail order came exactly a week after the high court granted interim anticipatory bail to Aisha before she headed to Kavaratti to appear before the police that questioned her for several hours over Sunday, Wednesday and Thursday. Aisha is expected to return to Kochi, where she works, on Saturday.

Aisha’s prompt appearance before Kavaratti police for interrogation was also taken into consideration while allowing her plea. “Consequent to granting interim anticipatory bail, the applicant was directed to appear before the investigating officer for interrogation, and there is no report she has not complied with the direction of this court,” Kerala High Court said.