‘Sharjeel Imam committed no crime, the FIRs against him deserve to be quashed by High Court’: Markandey Katju

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Sharjeel Imam
Sharjeel Imam

Sharjeel Imam, a student of Jawaharlal Nehru University , 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 ).

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.

(The opinions expressed in this article are those of the author’s and do not purport to reflect the opinions or views of The Rational Daily.)

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