Written by Gautam Bhatia
One of the more high-profile legal cases arising out of the riots that took place in Delhi in February 2020 has been that of Umar Khalid, who is accused under the Unlawful Activities Prevention Act (UAPA) of being part of a “larger conspiracy” to destabilise the government. It is notable that a large part of the case against Khalid centres upon a speech that he delivered at Amaravati at the time, as part of the protests against the Citizenship Amendment Act. It is equally notable that because of the stringent provisions of the UAPA, at the time of writing, Khalid has spent more than 500 days in jail without trial — one of many to be similarly incarcerated.
It is in this context that the proceedings of Khalid’s bail hearing before the Delhi High Court last week have raised several eyebrows. During the hearing, when it was pointed out to the Court that the speech contained no calls to violence — and that on the contrary, it specifically called for peaceful protest — the Court responded by highlighting several parts of the speech that it found “obnoxious” or “unacceptable”. These included, for example, an accusation of “jumla” against the prime minister — which the Court implied crossed the “Lakshman Rekha” of free speech — as well as references to “krantikari” and “inquilab” (words that are commonly used in Indian political jargon to signify “revolution”).
Admittedly, observations made by judges in the cut-and-thrust of oral argument do not always appear in the court’s final order. It is also true that judges sometimes raise strongly-worded objections to lawyers’ arguments simply to test their rigour under questioning. However, even with both these caveats in mind, the wide circulation and reporting of the Court’s remarks make it important to clarify when — in India — can an individual be jailed merely for something that they have said.
As one might expect, civilised societies do not, as a regular matter, jail people for speech. The response to speech that one finds “obnoxious” or “unacceptable” is not to use the heavy hand of the state and the law-enforcement machinery to silence someone, but to meet them with counter-speech (that may also be “obnoxious” or “unacceptable”).
There are two general exceptions to this. The first is hate speech, which is closely linked to discrimination and violence against vulnerable and marginalised groups (for example, in history, there was a close link between antisemitic speech and the economic and social boycott of the Jewish people, which eventually led to the Holocaust). The second is incitement to violence. The reason why incitement to violence does not fall within the protection of free speech is that — by its very nature — it leaves neither the time nor the scope for response or reason. When we think of incitement to violence, we think of a speaker egging on an already-enraged mob to burn down a neighbourhood. The analogy often used is that of falsely shouting “fire” in a crowded theatre, in order to trigger a stampede.
In India, certain forms of religious offence are also criminalised, but that is not relevant to the present case. What is relevant is that outside of these narrow exceptions, the worth or worthlessness, the obnoxiousness (or lack thereof), and the acceptability or unacceptability of speech are to be judged in the public sphere, and not by courts (and especially not when it is the bail application of an individual who has spent more than 500 days in jail without trial). It is most certainly not the courts’ prerogative to draw a “Lakshman Rekha” around the prime minister (or any other politician), and dictate what form of criticism is or is not permissible. Doing so is to confuse matters that belong in the domain of civility and good taste with matters that are criminal; and especially where an individual’s freedom is concerned, courts bear a heavy responsibility not to conflate the two.
Indeed, when we step back from legalism for a moment, and consider Khalid’s speech from the perspective of simple common sense, we find that the statements that the Court picked out are well within the mainstream of Indian political discourse. Politicians have — and will continue to — accuse each other of a lot worse than “jumla”. And anyone remotely plugged into Indian politics knows just how mundane and quotidian the word “revolution” is: Not only do we have a political party called the “Revolutionary Socialist Party” in Parliament, but as recently as March 2022, the Aam Aadmi Party called its election victory in Punjab a “revolution” that would spread to the rest of the country. Under normal circumstances, nobody would bat an eye at words like “krantikari” and “inquilabi” — a political heritage that all Indians share — being used in a political speech; in fact, one would be surprised at their absence from a political speech!
This is also why another observation by the Court — that Khalid is an “intelligent man” who might be using indirect speech to goad his audience to violence — must be examined with care. Neither the Court, nor anyone else has access into an individual’s mind: What we do have is a tangible record of events — of things done and spoken. And when the question is whether or not a person deserves to be in jail for years without trial, it becomes even more important to tread carefully. An enthusiastic political speech, a fiery political speech, a political speech that takes aim at opponents through satire, parody, or even by generating a sense of outrage — these may offend people’s sensibilities and ideas of civility, taste, and good behaviour — but these are not reasons to deprive an individual of their freedom. As the guardian of civil rights, the Court bears the burden of ensuring that the “Lakshman Rekha” does not turn into a weapon to permanently silence democratic dissent.
This column first appeared in the print edition on May 5, 2022, under the title ‘Unfreedom of speech’. Bhatia is a lawyer and author of Offend, Shock or Disturb: Free Speech Under the Indian Constitution