New Delhi: Merely praising another country without denouncing India is not sedition, the Himachal Pradesh high court said on August 19, granting bail to a person who was accused of having shared a photograph on social media that was “inflammatory and against the interest of the nation”, per a report in Bar and Bench.

Suleman, a resident of the village of Paonta Sahib in Sirmour district, Himachal Pradesh, had allegedly shared an AI-generated photograph of Prime Minister Narendra Modi on social media platform Facebook, with the words “Pakistan Zindabad”. 

Following this, an acquaintance of Suleman (who is a fruit vendor), filed a first information report (FIR) against him on May 27, under Section 152 of the Bhartiya Nyay Sanhita, 2023, alleging him of having written “in favour of Pakistan” and “against” the Prime Minister. On June 8, Suleman surrendered and had been in custody since then. 

In his bail application, Suleman pleaded that he was innocent and that he had been falsely implicated. Suleman’s lawyer argued that writing ‘Pakistan Zindabad’ by itself does not amount to inciting hatred in any way, and cited a previous case where the Himachal Pradesh high court had upheld this.

However, the state counsel argued that the relationship between India and Pakistan was strained when the post was shared, and that writing ‘Pakistan Zindabad’ was “anti-national”.

Hearing the case on August 19, Justice Rakesh Kainthla, a judge in the high court, noted that the complaint against Suleman did not prove “that hatred or discontent was brought towards the government established by law in India”. 

“Hailing a country without denouncing the motherland does not constitute an offence of sedition because it does not incite armed rebellion, subversive activities, or encourage feelings of separatist activities,” the judge noted in his order.

Thus there was “insufficient material” to link Suleman with the crime he had been alleged of committing, the Judge ruled, granting bail to the fruit vendor.

Section 152 of the Bharatiya Nyay Sanhita 2023 punishes “acts endangering sovereignty, unity and integrity of India”. This section does not mention the word sedition but in effect replaces Section 124A of the Indian Penal Code that pertained to sedition. However, before the BNS was enacted, the Supreme Court had suspended pending criminal trials and court proceedings under this section until the government reconsidered the law.

Section 152 of the BNS 2023 is the same Section pertaining to which the Supreme Court offered relief from “coercive action” to the trust that runs The Wire and its founding editor Siddharth Varadarajan after the Assam Police filed an FIR against them under this section for a story published on June 28 titled ‘IAF Lost Fighter Jets to Pak Because of Political Leadership’s Constraints’: Indian Defence Attache’. The Wire had submitted in the Supreme Court that the provisions of Section 152 of the BNS were vague, and created a “chilling effect” on freedom of expression, particularly affecting the right of the media to report and raise questions at the government. On August 12, the Court passed an order protecting members of the Foundation for Independent Journalism, the trust that owns The Wire, as well as founding editor Varadarajan, against any coercive action in connection with this.

Experts have raised several concerns about Section 152 of the BNS earlier as well. While Section 152 BNS criminalises “acts endangering the sovereignty, unity, and integrity of India”, what constitutes such endangerment has not been defined in the statute and this makes it “vague”, as per a report in The Hindu. It noted that “the lack of a statutory requirement to establish a causal linkage between the speech and its actual consequence before depriving the accused of personal liberty renders Section 152 amenable to abuse”.

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