Forwarding ‘Pakistan Zindabad’ post not offence of endangering India's sovereignty: Allahabad HC

The Allahabad High Court recently granted bail to a man accused of forwarding a social media post which said “Pakistan Zindabad”, while observing that the act will not attract the offence of endangering India's sovereignty and unity under Section 152 of the Bharatiya Nyaya Sanhita (BNS) [Sajid Chaudhary v. State of UP].

Justice Santosh Rai observed that to attract the offence under Section 152, BNS, there must be a clear intention to promote secession, armed rebellion, or subversive activities, or to endanger the sovereignty and integrity of India.

The Court held that forwarding a post supporting a foreign country may cause anger or disharmony among citizens, but it does not threaten the nation’s unity.

"Merely posting a message to simply shows supporting of any country may create anger or disharmony among citizens of India and may also be punishable under Section 196 BNS which is punishable up to seven years but definitively will not attract the ingredients of Section 152 BNS," the High Court observed in its September 25 order.

The Court was hearing a bail plea filed by one Sajid Chaudhary, who was arrested on May 13 this year. He was accused of forwarding a pro-Pakistan post.

He was booked for the offence under Section 152, BNS, which is widely viewed as the provision that replaced the offence of sedition under the earlier Indian Penal Code.

Chaudhary argued that he was falsely implicated and that merely forwarding the post did not amount to sedition or threaten India’s sovereignty.

The State opposed any grant of bail, contending that Chaudhary was a separatist. It argued that Chaudhary had previously attempted similar acts, which indicated a deliberate intent to support a foreign nation. The State told the Court that Chaudhary had commented under a Facebook post uploaded by a Pakistani user, stating 'Kamran Bhatti Proud of You, Pakistan Zindabad.'

The Court, however, eventually decided to grant Chaudhary bail after expressing reservations about whether his actions could amount to the offence under Section 152, BNS.

It noted that the State has not given any evidence to show that Chaudhary had made any statement against the integrity and sovereignty of India.

The Court cautioned that reasonable care has to be taken before invoking Section 152, BNS. The freedom of speech and expression should not be narrowly construed, unless words spoken or written actually affect the sovereignty and integrity of a country or encourage separatism, the Court said. In this regard, the High Court also referred to the Supreme Court's observations in the case of Imran Pratapgadhi v. State of Gujarat and another.

"It is further observed by the Apex Court that before registering a case regarding a post on social media, it should be looked into as a reasonable man and decision should be based on standards of reasonable, strong-minded, firm and courageous individuals and not based on standards of people with weak and oscillating minds," the High Court recounted.

Further, the Court also factored in that Chaudhary has been in jail since May, that there was no certainty as to when the trial against him would be completed, and the issue of overcrowding in jails.

It proceeded to grant him bail on various conditions to ensure that he does not misuse his liberty and so that he duly attends the trial against him.

Advocates Ajay Kumar Pandey and Alok Singh appeared for the applicant.

[Read Order]