Sharjeel Imam, a student of JNU, gave a speech on January 16 in Aligarh during a protest meeting against the Citizenship (Amendment) Act, asking people to cut off Assam and the northeast from the rest of India.
Consequently, the police in Delhi, Uttar Pradesh and Assam have registered FIRs against him on a sedition charge, and are seeking to arrest him. But has Sharjeel Imam 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 the US 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, 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.
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I disapprove of Sharjeel Imam’s speech, and I am against cutting off Assam or the rest of the northeast 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 the “clear and present danger” test laid down by Justice Holmes 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 Courts under Article 226 of the Constitution or section 482 of the Criminal Procedure Code.
In my opinion, by applying the Brandenburg test, the prosecution against the Bhima-Koregaon accused, Professor Saibaba of Delhi University and Dr Farooq Abdullah, Omar Abdullah, Mehbooba Mufti, Sajjad Lone, Syed Ahmed Shah Gilani, Shah Faesal and other political figures also deserves to be quashed. None of these persons in detention said anything that incited or produced imminent lawless action.
Justice Markandey Katju retired from the Supreme Court in 2011
The opinions expressed in this article are those of the author's and do not purport to reflect the opinions or views of THE WEEK