New Delhi: Former Supreme Court justice Markandey Katju on Monday came in defence of activist and ex-JNU scholar Sharjeel Imam, who has been slapped with sedition charges over an ‘inflammatory speech’ during an anti-CAA rally at Shaleen Bagh.
In a piece written for Firstpost, Katju said he disapprove of Sharjeel’s speech but insisted that “he has not committed a crime.”
“The cops went on to add that the speeches had the ‘potential to harm the religious harmony’ and the unity and integrity of India, for which the case was registered against him. However, I submit he has not committed a crime,” Katju said.
“I disapprove of Sharjeel’s speech, and I am against the cutting-off of Assam or the any part of 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 Oliver Wendell Holmes’ ‘clear and present danger’ test laid down in Schenck versus US, (1919) — Holmes’ test had replaced the vague ‘bad tendency test’ employed previously,” he wrote.
“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 of the Code of Criminal Procedure (CrPC),” he added.
Sharjeel was slapped with a sedition case after his alleged speeches went viral on the social media wherein he was heard speaking about Assam’s possible secession from the country in the wake of the CAA.
Earlier, he had been charged on similar charges at a police station in Aligarh for a speech he delivered on the AMU campus. Besides, a case under the stringent anti-terror law UAPA has been registered against him in Assam.
Citing a US Supreme Court ruling from 1969, Katju wrote, “In Brandenburg versus Ohio, 395 US 444 (1969), the Supreme Court of the US 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 of the Supreme Court of the US, Katju said, 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 Supreme Court of India in Arup Bhuyan versus State of Assam and Sri Indra Das versus State of Assam (both in 2011), and therefore is the law of the land in India too.”
Accordingly, 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, said the former SC judge.
On Monday, police raided the ancestral home of the anti-CAA activist in Bihar, hunting for him in sedition cases lodged across several states for his alleged “inflammatory” speeches, but he eluded the dragnet.
Police in two northeastern states–Manipur and Arunachal Pradesh–lodged FIRs against the JNU scholar, over his speech in which he threatened to “cut off” Assam and the northeast from the rest of the country.
Jehanabad Superintendent of Police Manish Kumar said police swooped on Imam’s ancestral house in Kako police station area on Sunday night after “help was sought by central agencies”.
Imam was not to be found but two of his relatives and their driver were detained for interrogation and let off thereafter, the SP said.
A graduate in computer science from IIT-Mumbai, Imam had shifted to Delhi for pursuing research at the Centre for Historical Studies at the JNU.
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Source: News18