Punjab and Haryana HC leaves Sec 121 open to misuse by terming inciteful posts on social media as 'waging war' against India

Recently, the Punjab and Haryana High Court in Arvind Singh @Ghoga vs State of Punjab (CRM-M No. 43622 of 2017) ruled that 'collecting men' on social media can amount to 'collecting arms' for waging war against the government (an offence punishable under Section 121 of the Indian Penal Code). The court assessed the social media posts of the petitioner and observed that they “undoubtedly reveal overt incitement to violence for the purpose of establishing the State of 'Khalistan'". The case which is still ongoing raises an important issue — whether inciteful posts on the social media can constitute the offence of waging war against the government.

The law on waging war against the government
One of the main provisions under which the petitioner, in this case, was charged is Section 121 of the IPC. Section 121 criminalises waging, attempting to wage war or abetting waging of war against the Government of India. Under Section 122, whoever “collects men, arms or ammunition” with the intention of committing an offence under Section 121, can also be held criminally liable. Ajmal Kasab who was given capital punishment in connection with the 2008 Mumbai terror attacks was convicted under Section 121.

Punjab and Haryana High Court. News18

Punjab and Haryana High Court. News18

Sections 121 and 122 are 'offences against the State' along with other offences mentioned in Section 124A (the Anti-sedition Law). Like section 124A, the meaning of the phrases used in sections 121 and 122 such as ‘waging war against the government’ and ‘collecting men’ for the purpose of waging war have not been clarified by the Legislature, leaving it to the courts to interpret the ambiguous phrases.

In Nazir Khan vs State of Delhi [2003 SCC (Crl) 2033], the Supreme Court found that the defendant, by kidnapping hostages and hijacking aircraft to secure the release of the defendant’s aides and collecting arms and ammunition, had committed a conspiracy to wage war against the government.

In Balwant Singh vs State of Punjab (AIR 1995 SC 1785), a judgment convicting the petitioners under sections 124A and 153A (promoting enmity between different groups and doing acts prejudicial to maintenance of harmony) of the IPC for raising slogans in a crowded place, was set aside by the Supreme Court which observed that raising slogans which did not evoke any response/reaction from the public does not constitute an offence under sections 124A and 153A.

In the court’s opinion, a "more overt act" was required. While the case did not relate to waging war against the government, the judgment was relied upon by the petitioner in Arvind Singh to argue that the charges framed against him under sections 121 and 121A of the IPC were not established. The petitioner’s argument in Arvind Singh was that his social media posts did not constitute a threat to the government for an offence against the State to be made out.

The Punjab and Haryana High Court found inter alia that the petitioner, Arvind Singh, had incited people on social media to resort to violence for the purpose of creating an independent State of “Khalistan” by posting incendiary and provocative messages from leaders of designated terrorist groups based in Pakistan on Facebook. The high court also found that Arvind Singh by sharing posts on his Facebook account was ‘collecting men’ for the purpose of waging war against the government under Section 122.

The Court also distinguished the instant case from Balwant Singh on the ground that incitement on social media is accessible to people all over the world, and not limited to a crowded place as in the case of raising slogans. The court was also satisfied that the acts of the petitioner had also evoked a response from internet users as the screenshots of the petitioner’s Facebook account indicated that several other people were also found to have acted on social media with the same objective.

Given that an offence under Section 121 is punishable with death/imprisonment for life and imposition of a fine, it is worth examining whether incendiary social media posts should be sufficient ground for holding a person liable for such a grave offence.

‘Collecting men’ on social media to wage war against the government

Like the anti-sedition provision, the historical reason for including the offence of ‘waging war against the government’ in the IPC was to clamp down on Indian freedom fighters during the British rule who would attempt to collect men or arms to overthrow the Crown. While Section 121 has often been put to use in cases involving terrorism, Arvind Singh is arguably the first case which involves social media as a tool to wage war against the government. This is not surprising given that sections 121 and 122 were conceived at a time when social media was not born. The Information Technology (IT) Act, 2008, too does not contain any provision which specifically deals with the use of social media to wage war against the government.

An important issue concerning the interpretation of Section 122 is the meaning of ‘collecting men’ and whether the high court gave a broad meaning to the phrase. The high court seemed to agree with the State’s view that the petitioner’s posts amounted to ‘collecting men’.

One could argue that for the State to establish an offence under Section 122, it is not enough to show that the petitioner had posted incendiary social media posts which were shared by other internet users with the same objective; only where there is evidence that the internet users who shared the petitioner’s posts agreed to join hands with the petitioner to ‘commit’ an act of violence should the petitioner’s posts constitute the act of collecting men envisaged under Section 122.

The relevant question here is whether sharing a post which calls for the establishment of an independent statehood by the petitioner indicates ‘agreement’ to participate in waging war. One could argue that it is far-fetched to conclude that a person was ‘collecting men’ for the purpose of waging war simply from the fact that the person posted an inciteful post which was shared by other internet users. This also leads one to question the evidentiary value of a person’s social media account. Law enforcement agencies in India are inclined towards using social media as evidence or indication that a person may be violating laws such as income tax laws.

A question which inevitably arises is whether the Punjab and Haryana High Court order can leave room for the misuse of Section 121 threatening free speech. This is not uncommon in cases involving offences against the State — for instance, in 2012, a cartoonist, Aseem Trivedi, was arrested on grounds of sedition for posting cartoons depicting widespread corruption. In such cases, it might be best to place a high burden on the prosecution for establishing that an offence of waging war against the government is made out.

Only in cases where there is clear intention on the part of internet users who share/tweet posts (which incite the use of violence) to participate in such violence should the ingredient of Section 122 — collecting men with the intention of waging war against the government — be said to be fulfilled.

An intention to participate in an act of violence cannot be inferred simply by the sharing of an incendiary post. The above approach can help to strike a balance between preventing social media from being used to wage war and preventing the use of a draconian law to silence internet users.

Devika Agarwal is an LLM candidate at University of Cambridge

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Updated Date: Jun 14, 2018 08:52:33 IST

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