Sharjeel Imam, a student of JNU, gave a speech on 16th January, 2020 in Aligarh during an anti CAA protest meeting, asking people to cut off Assam and the North East from the rest of India. Consequently, the police of Delhi, UP, and Assam have registered FIRs against him on a sedition charge, and are seeking him. But has he committed any crime?
I submit he has not. In Brandenburg vs Ohio, 395 US 444 ( 1969 ) the US Supreme Court held "The Constitutional guarantee of free speech does not permit a state to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action".
This decision has stood the test of time, and is the law of the land in America ever since. It was followed by two decisions of the Indian Supreme Court in Arup Bhuyan vs State of Assam and Sri Indra Das vs State of Assam, of 2011 ( see online ), and therefore is the law of the land in India too.
Hence inflammatory speech is also protected by the freedom of speech guaranteed by Article 19(1)(a) of the Indian Constitution, unless it incites or produces imminent lawless action.
I disapprove of Sharjeel Imam’s speech, and I am against cutting off Assam or the rest of the North East from India. However, I do not see how his speech would incite or produce imminent lawless action. The word ‘imminent’ in the Brandenburg test is extremely important. It stresses on the time element, and makes more defined and more rigorous Justice Holmes’ ‘clear and present danger’ test laid down in Schenck vs US.(1919), which had replaced the earlier vague ‘bad tendency test‘ .
Therefore I am of the opinion that Sharjeel Imam committed no crime, and the FIRs against him deserve to be quashed by the High Court under Article 226 of the Constitution or section 482 Cr.P.C..
In my opinion applying the Brandenburg test the prosecution against the Bhima Koregaon accused, Prof Saibaba of Delhi University , Dr Farooq Abdullah, Omar Abdullah, Mehbooba Mufti, Sajjad Lone, Syed Ahmed Shah Gilani, Shah Faesal and other political figures also deserve to be quashed. None of these persons in detention said anything which incited or produced imminent lawleass action.
Justice Markandey Katju is former Judge, Supreme Court of India and former Chairman, Press Council of India.
Disclaimer : PunjabToday.in and other platforms of the Punjab Today group strive to include views and opinions from across the entire spectrum, but by no means do we agree with everything we publish. Our efforts and editorial choices consistently underscore our authors' right to the freedom of speech. However, it should be clear to all readers that individual authors are responsible for the information, ideas or opinions in their articles, and very often, these do not reflect the views of PunjabToday.in or other platforms of the group. Punjab Today does not assume any responsibility or liability for the views of authors whose work appears here.
Most shared Punjab Today articles:
KYUN KE HUM HAIN HINDUSTANI
Three Women of 1984
FROM 1984 TO BARGARI - Hurt & angry, we’ve tried rage, anger. Did we miss karuna?
REVISITING 1984 – RIOT AROUND A POLE
KARTARPUR SAHIB: A CLARION CALL FOR PEACE IN AN AGE OF CYNICISM
If it could happen to Arun Shourie, imagine what could they do to you?
Healers & Predators – The Doctor is In, & is very corrupt
Amarinder, Badals, AAP — Every party in Punjab is now an Akali Dal
Welcome to 1947. Happy Independence Day. Would you like to step out?
In Pakistan, a donkey pays for democracy – bleeding, its nostrils ripped apart
WOOING THE PANTH: Amarinder a little less Congressy, Akali Dal a little more saffron
"Captain Amarinder Singh ji” and "Rahul”: Reading Sign Language In A Relationship
The Comrade In Punjab - Lost, Irrelevant, Asleep, Even Bored!
WATERS ROYALTY - The Loot that Rajasthan Committed
AMARINDER GOVT's LOVE FOR FARMERS, AND MY DAD's FOR HIS SCOOTER
OF SUNNY KID & HORSE SENSE: The Punjab-Punjab Ties
TRUDEAU VISIT AND RIGHT-WING MEDIA MACHINE
OF NIRMAL SINGH'S EYES
Mr. CHIEF MINISTER, PLEASE CALL OFF JANUARY 7 FUNCTION
MR PRESIDENT, PLEASE TAKE BACK HIS GALLANTRY MEDAL
A SAFFRON JOURNEY VIA CANADA
BAD, BAD WOMAN!
Punjab Today believes in serious, engaging, narrative journalism at a time when mainstream media houses seem to have given up on long-form writing and news television has blurred or altogether erased the lines between news and slapstick entertainment. We at Punjab Today believe that readers such as yourself appreciate cerebral journalism, and would like you to hold us against the best international industry standards. Brickbats are welcome even more than bouquets, though an occasional pat on the back is always encouraging. Good journalism can be a lifeline in these uncertain times worldwide. You can support us in myriad ways. To begin with, by spreading word about us and forwarding this reportage. Stay engaged.
— Team PT