By Livie Jain and Aditendra Singh
Masrat Zahra is among those who have been recently booked[1] by the Jammu & Kashmir police under the Unlawful Activities (Prevention) Act, 1967 (hereinafter UAPA).[2] A photojournalist by profession, she was booked under section 13 (punishment for ‘Unlawful Activities’) of the UAPA, read with section 505 of IPC[3] because of her ‘anti-national activities’ through social media which could disturb public tranquility and order in the valley. She had shared posts wherein slain terrorist Burhan Wani was declared a martyr.[4] Though there are various shades of illegitimacy to such bookings, in this post, we will argue about how invoking charges under UAPA was inappropriate and in contravention to their fundamental right to freedom of speech and expression. For this, we would lay emphasis upon the test of Incitement, which has been enunciated by the Supreme Court of India in various case laws and which has to be taken into account while deciding the reasonableness of the restrictions imposed under Art. 19(2).
Freedom of Expression and Test of Incitement
The Preamble to our constitution depicts the ideals, aspirations, and vision of a resuscitated India that aims to redistribute liberty and justice. The Constitution has termed certain rights as fundamental to the existence of a thriving democracy. These rights were initially drafted with limited restrictions to guarantee maximum freedoms to all.[5] However, it was not long before Constitutional Amendments were introduced by the politicians to keep the country on a tight leash.
One such Fundamental Right is the right to freedom of speech and expression. The Honourable Supreme Court has recognised in various case laws that this right is the most precious right of all.[6] The court pondered upon how the freedom of speech and expression lies at the foundation of all democratic societies[7] and for the people to participate in democratic process, it is essential that there is free debate and open discussion among the masses.[8]
However, the legislature kept transferring the power to curb free speech to the state by amending the letter of the law time and again. The very first amendment to the constitution led to the addition of a clause in Art. 19(2) in the name of ‘public order’ as a ground of restriction.[9] It transferred more power in the hands of the government from the realm of the public. By the 16th amendment, reasonable restriction in the ‘interest of the sovereignty and integrity of India’ was made another ground for curtailing liberty of expression.[10] Though this in particular led to widening the scope of state’s scrutiny, the courts still successfully harmonized it with the freedom of citizens.
Public order and Incitement to offence
In the seminal case of Shreya Singhal v Union of India,[11] while quoting the US case of Whitney v. California[12], the court held that freedom of speech and expression is made up of three concepts, viz. discussion, advocacy, and incitement. According to the court, until the third stage i.e. incitement, is reached, Article 19(2) does not become applicable. This distinction has also been validated by Arup Bhuyan vs State of Assam,[13] wherein it was held that the expression, until it can be equated to ‘incitement’, remains mere ‘advocacy’ of a certain point of view and thus could not be truncated.
The nature of incitement itself is further relevant before adjudging the permissibility of speech. In this regard, the case of Ram Manohar Lohia[14] held that there must be proximate and reasonable nexus between the speech and public order. The case of S Rangarajan v Jagjivan Ram & Others[15] is also relevant here, wherein it was held that for the state to curtail the freedom of speech and expression, ‘the anticipated danger should not be remote, conjectural or far-fetched. It should have a proximate and direct nexus with the expression … like a spark in a pow[d]er keg’.
Thus, it is clear that the bar to put restrictions on the freedom of speech and expression is held high, so as to allow for maximum voices to be heard. Incitement per se is not an offence unless it is coupled with violence. So, pulling the strings in the interest of maintaining ‘public order’ or ‘incitement to an offence’, has been made difficult for the state.
Interests of the sovereignty and integrity of the country
However, this in itself is not sufficient to protect the liberty of citizens since laws like the UAPA have existed ever since and are saved by the “protection of sovereignty and integrity of the country” in 19(2). This has been used widely and often wrongfully by the machinery of the state to legitimize restrictions on freedom of speech.[16] In this regard, the case of Balwant Singh v State of Punjab[17] becomes important. In this case, two Sikh men raised slogans, such as Khalistan Zindabad, calling for a secessionist movement favouring Khalistan. It was held by the court that few slogans which do not garner much attention or are not capable of creating any law and order situation, cannot be termed as seditious. This directs our attention again towards the test of incitement. Mere sloganeering devoid of the capacity to incite people to violent consequences could not be suppressed.
This is not the first case to focus its attention upon adjudging whether the sovereignty of the state is affected by relying on the test of incitement. The case of Kedar Nath Singh v State of Bihar[18] has also tested speeches on the touchstone of the incitement to violence standard, while saving the law of sedition when its constitutionality was challenged. These cases are relevant in the current discussion as they, implicitly or explicitly, lay down that the test of incitement is the relevant consideration even when the restriction of ‘in the interests of the sovereignty and integrity of the country’ is applied.
Muzzling the Undesirable
Applying the concepts of freedom of speech and expression, as enunciated in the case of Shreya Singhal, posting on social media with an intent to share or endorse a particular view only seems to be, at the most, an advocacy of an opinion. Even if we apply the crude meaning of incitement, still it does not seem to pass muster as there is no call for, at the least, protest of any sort. Even if there is any incitement, then also authorities have a duty to show that such incitement has a proximate and direct nexus to any violent activity which is sought to be curbed.
Therefore, the booking of Masrat Zahra under provisions of UAPA neglects the protection afforded by the Constitution. The unwarranted growth in complaints in the name of Offences against the State, especially through the draconian UAPA[19], seems to suggest that the freedom of speech appears to be in jeopardy. Though the courts have attempted to create a balance, it has not prevented the booking of citizens that are a potential threat to the government in power. Careless slapping of sections of UAPA to suppress criticism or even mere expression leads to a ‘chilling effect’ upon free speech in general and risks the future of those people in particular.
To show the irony of our democratic setup, recently, Honourable Supreme Court judge J. Deepak Gupta delivered a lecture.[20] Not quoting him would be a great injustice as his comments came only a day after the purported bookings of Masrat. Right to dissent, right to have another point of view, inheres in every individual not only because of the constitution but because it is a human right to disagree. These rights become meaningless if a person cannot criticize.
The authors, Livie Jain and Aditendra Singh, are currently law students at the National Law University, Delhi.
[1] Crackdown amid corona: Kashmir police book photojournalist Masrat Zahra under UAPA to send a message, available at https://caravanmagazine.in/media/kashmir-fir-photojournalist-masrat-zahra-crackdown-coronavirus last seen on 18/05/2020.
[2] Unlawful Activities (Prevention) Act, 1967.
[3] Indian Penal Code, 1860.
[4] Use of UAPA Against Journalists is Last Nail in Coffin for Press Freedom in Kashmir, available at https://thewire.in/media/use-of-uapa-against-journalists-is-last-nail-in-coffin-for-press-freedom-in-kashmir last seen on 31/05/2020.
[5] Abhinav Chandrachud, Republic of Rhetoric: Free Speech and the Constitution of India 87-92 (2017).
[6] Sakal Papers (P) Ltd, and others v Union of India, 1962 AIR 305; Shreya Singhal v Union of India, (2013) 12 S.C.C. 73.
[7] Romesh Thappar v State of Madras, 1950 AIR 124, at 9.
[8] Maneka Gandhi vs Union of India, (1978) 1 SCC 278, at 29.
[9] The Constitution (First Amendment) Act, 1951, § 3, available at http://legislative.gov.in/constitution-first-amendment-act-1951 last seen on 31/05/2020.
[10] The Constitution (Sixteenth Amendment) Act, 1963, § 2, available at http://legislative.gov.in/constitution-sixteenth-amendment-act-1963 last seen on 31/05/2020.
[11] (2013) 12 S.C.C. 73.
[12] 274 U.S. 357 (1927).
[13] 2011 (3) SCC 377.
[14] The Superintendent, Central … vs Ram Manohar Lohia, 1960 AIR 633
[15] 1989 SCR (2) 204.
[16] See generally Anand Teltumbde, How the Regime Keeps Dissent at Bay, 47 EPW no. 31 (2012); Jyoti Punwani, The Trial of Binayak Sen, 45 EPW no. 52 (2010).
[17] (1977) 4 SCC 452.
[18] 1962 AIR 955.
[19] Manipur, J&K record maximum number of cases under Unlawful Activities (Prevention) Act, available at https://www.thehindu.com/news/national/manipur-jk-record-maximum-number-of-cases-under-unlawful-activities-prevention-act/article30070028.ece last seen on 31/05/2020.
[20] The Right to Dissent is the Most Important Right Granted by the Constitution: Justice Gupta, available at thewire.in/law/right-to-dissent-constitution-justice-deepak-gupta last seen on 18/05/2020.
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