Dealing with the thought police

On February 5, an Additional Sessions Judge in Punjab sentenced three young men to life in prison. Arwinder Singh, Surjit Singh and Ranjit Singh were convicted under a little-known provision of the Indian Penal Code concerning “waging war against the government of India”. In what heinous manner had the three men waged war against the government, which justified a sentence of life imprisonment? A perusal of the 64-page-long judgment reveals the following. They did not commit any physical violence, and nobody was harmed in any way. They were not caught in possession of weapons. They were not overheard planning any specific terrorist attack, nor were they on their way to commit one when they were apprehended. What did happen was that the men were caught with literature supporting the cause of Khalistan, a few posters that did the same, and some Facebook posts (whose content we do not know) on the subject. With this being the sum total of what passed for “evidence” in the case, it is clear that the verdict of the Additional Sessions Judge is unsustainable, and will be reversed. It is important, however, for the higher courts to recognise not only that the judgment is fatally flawed but also that it represents a dangerous moment for the judiciary: this is not the first occasion in recent times when a court has abandoned constitutional values in favour of a crude nationalistic rhetoric that belongs more to the demagogue’s pulpit rather than to the courtroom. And in that context, the judgment of the Additional Sessions Judge marks the beginnings of a trend that, if left unchecked, can swiftly erode our most cherished liberties. Of speech and association The first —and most glaring — aspect of the judgment is its apparent disregard for the Constitution. At the heart of the Constitution’s fundamental rights chapter is Article 19, which guarantees, among other things, the freedom of speech and association. Of course, the state may impose “reasonable restrictions” upon these fundamental freedoms, in the interests of, for example, the security of the state. In a series of careful decisions over five decades, the Supreme Court has articulated the precise circumstances under which a restriction on the freedom of speech or association is “reasonable”. After the famous 2015 judgment in Shreya Singhal , in which Section 66A of the Information Technology Act was struck down, the position of law has been clear: speech can be punished only if it amounts to direct incitement to violence. Everything short of that, including “advocacy” of any kind, is protected by the Constitution.

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