What is advocacy and what is incitement? In recent times, the state has defined it differently from the court.
What kind of speech attracts the wrath of the state and what kind goes unpunished?
It is now two weeks since a teacher from a school in Bidar, Karnataka, and the mother of a pupil who participated in a play on the Citizenship (Amendment) Act were imprisoned. They were charged with Sedition.
The student, an 11-year-old girl, said she felt distraught and unable to write her exams.
In Mumbai, Kris Chudawala, 22, who identifies as transgender, was also charged with sedition for raising slogans in support of activist Sharjeel Imam, as were over a dozen people in Azamgarh, Uttar Pradesh, who were protesting against the new citizenship law.
The invocation of Section 124 A which lays out the offence of sedition requires two ingredients: 1) Speech which “…brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the Government established by law in India” and 2) Incitement to violence, which incitement, the Supreme Court held should be of such nature as “a spark in a powder keg”.
The apex court has taken some care to emphasise that the test is not how tasteful or repugnant the statement is but its relationship with real violence. In the case of Balwant Singh and Another vs State of Punjab, for example, where the alleged violation occurred on the day former Prime Minister Indira Gandhi was assassinated, the impugned statements included Khalistan Zindabad (All hail Khalistan), Raj Karega Khalsa (Khalsa will rule) and Hinduan Nun Punjab Chon Kadh Ke Chhadange, Hun Mauka Aya Hai Raj Kayam Karan Da. (We will throw Hindus out of Punjab, the time has come to establish our rule.)
“It appears to us that the raising some slogan only a couple of times by the two lonesome appellants, which neither evoked any response nor any reaction from any one in the public can neither attract the provisions of Section 124A or Section 153A IPC Some more overt act was required to bring home the charge to the two appellants, who are government servants,” the Supreme Court held.
The apex court said the police officers exhibited “lack of maturity” and oversensitivity to the act of sloganeering in a tense time.
“In situations like that, over sensitiveness sometimes is counter productive and can result is inviting trouble. Raising of some lonesome slogans, a couple of times by two individuals, without anything more, did not constitute any threat to the Government of India as by law established not could the same give rise to feelings of enmity or hatred among different communities or religious or other groups,” the court added.
In the landmark judgment in Shreya Singhal vs Union of India, the court emphasised the difference between advocacy and incitement, holding that the former is not illegal while the latter is.
It cited Justice Brandeis from his judgment in Whitney v. California where the judge observed: “….But even advocacy of violation, however reprehensible morally, is not a justification for denying free speech where the advocacy falls short of incitement and there is nothing to indicate that the advocacy would be immediately acted on. The wide difference between advocacy and incitement, between preparation and attempt, between assembling and conspiracy, must be borne in mind. In order to support a finding of clear and present danger it must be shown either that immediate serious violence was to be expected or was advocated, or that the past conduct furnished reason to believe that such advocacy was then contemplated…”
So what could there possibly be in a school play which would qualify as sedition in terms of the aforementioned contours of the law?
Contrast this with the statement “Desh Ke Gaddaron Ko, Goli maaron saalon ko” made by Union Minister Anurag Thakur while he was campaigning for the Delhi assembly elections. His statement was followed by actual violence.
Let’s look at another speech related offence which has recently been in the news— Section 153A—which talks about disturbing public tranquility and promoting enmity. It is important to reproduce the relevant portion of the provision:
“153A. Promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony.—
a by words, either spoken or written, or by signs or by visible representations or otherwise, promotes or attempts to promote, on grounds of religion, race, place of birth, residence, language, caste or community or any other ground whatsoever, disharmony or feelings of enmity, hatred or ill-will between different religious, racial, language or regional groups or castes or communities, or
(b) commits any act which is prejudicial to the maintenance of harmony between different religious, racial, language or regional groups or castes or communities, and which disturbs or is likely to disturb the public tranquillity……” (Emphasis Supplied)
On 31 January, 2020, the Election Commission of India vide a letter directed Twitter to take down four tweets. The EC claimed that one of them violated Section 153A and the Model Code of Conduct (MCC). The others violated the MCC as well as Section 123 of the Representation of People Act, 1951. Curiously, while three tweets seem to have been taken down, one is still up and alive here.
Note that the EC has the powers to direct the registration of an FIR but it chose not to exercise that option. The police has not sought sanction to prosecute anyone either.
There have been other instances of speech by powerful public figures which, unlike the utterances made by many people, have not attracted any punitive measure. Take for instance Bharatiya Janata Party MP Parvesh Verma who said Shaheen Bagh protestors (mostly women) would kill and rape or Uttar Pradesh Chief Minister Yogi Adityanath who said that those sitting in Shaheen Bagh support terrorists.
So which speech qualifies as incitement and which will be ignored? These days, it would seem, it depends entirely on who you are.
Dushyant is a lawyer practising in Delhi.