Seditious Social Media Posts may constitute offence of Waging War against Govt, Punjab & Haryana HC [Read Order]

The Punjab and Haryana High Court recently observed that sharing social media posts with seditious, divisive content could constitute the offence of waging war against the state under Sections 121 and 121A of the Indian Penal Code (IPC)..Justice Sudip Ahluwalia made the observation while dismissing a bail plea preferred against an arrest made in 2016. The petitioner had been accused of sharing several social media posts oriented towards the establishment of a separate state of “Khalistan” for Sikhs..The criminal charges made out against the accused included waging war, abetment and conspiracy to wage war against the government under the IPC, in addition to allied offences under the Unlawful Activities (Prevention) Act, 1967..In his bail plea before the High Court, the petitioner argued that the sharing of allegedly seditious/communally sensitive or hateful posts on Social Media, or of receiving money from abroad for distributing Pamphlets, Booklets etc. abroad meant to convey the objective of securing “purity” or “non-servility” of the ‘Sikh Path’ does not necessarily establish the offences for which he is charged..To buttress his case, the petitioner relied on the cases of Nazir Khan and others v. State of Delhi and Balwant Singh and another v. State of Punjab..Notably, in Balwant Singh’s case, similar charges were levelled against two accused for shouting slogans endorsing Khalistan in an open space. The Apex Court, however, dismissed the case, after finding that the police had arrested them prematurely for casual slogans which evoked little response. In that case, the Court had observed,.“It appears to us that the raising some slogan only a couple of times by the two lonesome appellants, which neither evoked any response nor any reaction from anyone in the public can neither attract the provisions of Section 124A or Section 153A IPC Some more overt act was required to bring home the charge to the two appellants…”.The possible scope of response to such messages in turn appears to have prompted Justice Ahluwalia to distinguish the instant case from Balwant Singh’s case, while dismissing the bail plea..The judge noted that, in contrast to Balwant Singh’s case, social media posts have a larger audience and are likely to evoke a significantly wider response. Further, it is difficult to track seditious conduct when it comes to social media posts and an internet audience. The Court thus observed,.“The reliance on the Balwant Singh…would not appear to be helpful to the Petitioner, since here the incitement is on Social Media directly accessible all over the World simultaneously, and not just in a limited crowded place, such as the one in which the Slogans were shouted by the Appellants in the said case..…the response of innumerable people associated with or monitoring/participating in the Social Media interaction can also not be directly verified as was possible in the case of Balwant Singh (Supra), where it was held that Slogans shouting did not evoke any reaction from the crowd, but the same is not the case here, as the posts of several other persons, as seen in the Social Media Screen Shots would go to indicate.”.In the instant case, the Court took note that the state had reproduced seditious social media posts running up to over 3000 pages, attributed to the accused. These posts contained propaganda and messages inciting violence against the Indian Government with a view to establishing an independent “Khalistan” for Sikhs. As noted by the Court,.“Some of the relevant posts attributed to the Petitioner’s aforesaid Account undoubtedly reveal overt incitement to violence for the purpose of establishing the State of “Khalistan”. It is also seen from some of the coloured printouts of the Screen Shots of the alleged Face Book Account that several persons are active on the Social Media with the same objective simultaneously.”.In addition to personal messages, the Court observed that the accused appeared to have also reproduced similarly incendiary messages from the leaders of designated Terrorist Groups..Taking a serious view of the same, and given the observed impact of social media posts, the Court proceeded to dismiss the bail application, holding that,.“It can therefore, be safely held that the Petitioner by way of collecting ‘men’, with the intention of either waging or being prepared to wage war against the Government of India, would be liable under section 122 of the IPC, which is punishable at par with section 121-A of IPC itself, for which he is already facing trial. The punishment in such event can extend to imprisonment for life. .For these reasons therefore, the Petitioner would not appear to be entitled for immediate release on bail at this stage.”.Read Order: