-Sarah Unhelkar and Hitanshi Jain
The Supreme Court recently granted interim bail to Ashoka Professor Ali Khan Mahmudabad with specific conditions. Mahmudabad was arrested on May 18th, following two FIRs being registered against him with the Haryana Police for his social media posts. While sharing his thoughts via his X (earlier “Twitter”) account, he applauded the precision strikes carried out by the Indian Army during Operation Sindoor. He further condemned mindless war-mongering in the post, and shed light on how a potential war, especially one fought without due care and cause, would disproportionately affect the poorer sections of society. His comment that triggered an extremist response merely talked about how while having two women soldiers, and especially Col. Qureishi, was certainly a step in the right direction, but, such optics must also be translated to ground reality. He called for protection for the victims of mob lynchings, arbitrary bulldozing and hate-mongering, and went on to condemn the deep communal divide which had penetrated Indian politics in recent times, Prof. Ali concluded his statement by expressing his support for the press conference which alluded to a more united India, but maintained that such a united nation was not the reality yet for many Muslims in India
He has been directed to surrender his passport and barred from speaking or writing anything more about his post or Operation Sindoor. The Court described his post as “dog whistling”, and Justice Suryankant asked the professor, “Why try to gain cheap popularity?”. However, the Court missed out on important questions such as “What part of the post exactly is seditious/“unpatriotic.” This is a classic example of what Saurav Das in his article calls “vibe jurisprudence” where judicial outcomes are a result of an individual judge’s temperament, whims, political perceptions, and anxieties rather than consistent legal principles.
This case comes at a time when the contours of free speech are being repeatedly tested. It assumes a greater constitutional significance as it touches the shores of “political speech” and also reignites the debate around sedition and its modern-day relevance, which is the primary focus of the blog.
Section 124A: A Colonial Relic in Constitutional Clothing
The Prince amongst the Political Sections, Section 124-A of the Indian Penal Code, 1860 [“IPC”] punished anyone who ‘brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the Government established by law in India’, through words, symbols, or visible representation.
The colonial legislation found itself in a dark spot when the High Courts of newly Independent India were contemplating whether sedition falls under the permissible limitations on Free Speech under Article 19. The Supreme Court answered the question affirmatively in Kedar Nath Singh while inserting extra-textual safeguards and bringing it within the fold of constitutional limitations. Precisely, Section 124 A is constitutional only because and insofar as it aids “maintaining public order” and fits within the meaning of Article 19(2). 61 years later, in 2023, CJI Chandrachud acknowledged this desperate attempt to save sedition and observed that the earlier Indian jurisprudence did not see the evolution and substantive interpretation of Article 14 and Article 21.
The recent years have seen the Court’s active role in aiding the working of democratic institutions by protecting legitimate public criticism of governmental action under Art. 19(1)(a) However, in the present case, the Court seems to have overlooked its own previous work in elevating free speech (especially political speech) by diluting the distinction between disloyalty to the government and a “strong” criticism of its measures, which is categorically protected under the Right to Freedom of Speech.
This sentiment has also been echoed in the relatively recent judgment of Shreya Singhal v Union of India. It was held that the unpopularity of, or the annoyance or inconvenience caused by any discussion/advocacy, regardless of its extent, cannot take away the protection offered by Art. 19(1)(a), or even attract Art. 19(2), until it reaches the level of “incitement”.
Section 152 BNS: Old Wine in a Fresh Flask?
The apparent exclusion of Sedition from the new penal code seemed to be the light at the end of the tunnel. However, the hope was short-lived with the introduction of Section 152 of Bhartiya Nyaya Sanhita [“BNS”], the new repackaged version of Sedition. While Introducing the Section, the Home Minister, Amit Shah, notably remarked “The new law shifts its focus from the individual to the nation. Any activity will be considered treason only if it is intended against the integrity, sovereignty and unity of the nation and not just because it is against the government. Anyone can say anything against the government, but if someone interferes with the country’s flag, security, or property, they will go to jail”. However, if the new provision does merely serve the nation, the question of why a well-rounded, analytical comment in a Facebook post landed a distinguished professor in prison, remains unanswered.
This case lays bare the inherent dangers of this provision, which has not only retained the outdated aspects of the earlier condemned S.124A of the Indian Penal Code,1860 [“IPC”], but has further widened the ambit of acts which can be suppressed by the State under it. The section attempts to ambiguously widen the scope of the modes of commission of the offence (by including “electronic medium” within its ambit), and the prohibited actions ,while completely altering the object against whom the crime can be committed from the “Government established by law in India” to “India” and adding an element of mens rea. by including “electronic medium”.
Limiting Speech on an “Electronic Medium”
The inclusion of electronic communication into the Section has exposed any individual expressing an opinion on the internet to legal consequences. This case stands out as a classic example of the same. It shows how opinions disliked by a section of society or deemed unpatriotic by some can be subjected to legal scrutiny, regardless of whether the post contains all (or any) elements required to constitute an offence.
This expansion to newer mediums of information dissemination without a simultaneous extension as to the nature of the content being criminalised has been utilised by this court previously to strike down S. 66A, Indian Information Technology Act, 2000. It was further held that the contours of free speech protected under Art. 19(1)(a), including any criticism against the government, remains the same across all mediums.
The Court also laid down a clear threshold requiring that in order for any speech or message to be considered dangerous, there must be a clear nexus between the message and an action that may be taken based on the message, which is absent herein. From a reasonable man’s perspective, the complete absence of any incitement towards an “offence” in Mahmudabad’s post is telling. As the court itself held,“…the mere causing of annoyance, inconvenience, danger, etc., or being grossly offensive or having a menacing character are not offences..”
The section goes on to criminalise “subversive activities” and “encouraging feelings of separatist activities”, widening the scope of seditious activities.
Subversive and Separatist: The New Lingo?
This new vocabulary has unduly widened the scope of provision. Anything subversive, i.e., which “means to undermine the authority of an established political system”, can now be prosecuted, regardless of whether it is legitimate or not. Similarly, any academic analysis or even a mention of minority rights can now be deemed to “encourage separatist feelings”, as was also done in Disha Ravi Case.
And yet, the irony runs deeper. The explanation to this provision excludes any comments “expressing disapprobation” of governmental actions or measures with a view to “obtain their alteration by lawful means”. Mahmudabad’s post, which merely draws attention to criminal activities like mob lynchings and requests legal protection for such victims, clearly falls within the purview of this exception. This, coupled with a lack of mens rea, since the provision requires the act to have been committed “purposely or knowingly”, completely excludes this case from any prosecution under this section.
Conclusion
The importance of political speech cannot be undermined; it is undoubtedly the only important factor in the survival of any democracy. It ensures that people can become equal partners in the process of democratic discussion and change. The Supreme Court acknowledged the chilling effect of Sedition on Political Speech in S.G Vombatkere v. Union of India, as being akin to a “carpenter being given a saw to make an item, [who] uses it to cut the entire forest instead of a tree”.
Another concerning aspect is the new trend of impounding passports as seen in the Ranveer Allahbadia case as well. The Court, in its Order, also directed the professor to surrender his passport before the Court of the Chief Judicial Magistrate, Sonipat. The present case does not involve any grave criminal offence that would warrant the surrender of passports. Such a restriction carries far-reaching consequences for the petitioner, potentially impeding his personal and professional obligations and amounting to an undue infringement of his rights under Article 21, particularly the right to personal liberty and freedom of movement.
Any autocratic legislation and order that goes beyond the circumference of rationale and reason, particularly sedition, which stifles political speech, should find no place in the robust democratic framework of India. Sedition is a culmination of legislative and judicial anxiety, rooted in institutional insecurity and an enduring obsession with preserving authority. It essentially protects an undefined office that can be invoked precisely when no other law seems to apply.
Whether this order signals a shift in the role of the Hon’ble Supreme Court from the custodian of the Constitution to the tribunal of public sentiment and moral policing remains to be seen, but the restrictions imposed thus far show a very bleak future.
The authors are 4th year students at National Law University, Jodhpur.