Sharjeel Imam, a former student of Jawaharlal Nehru University, gave a speech on 16 January in Aligarh during an anti-Citizenship Amendment Act (CAA) protest meeting, asking people to cut Assam and the North East off from the rest of India. Consequently, the police forces of Delhi, Uttar Pradesh and Assam have registered FIRs against him on sedition charges, and are seeking his custody.

But has he committed any crime ?

To recap, Sharjeel came to the limelight on Sunday during the ongoing protests at Shaheen Bagh, for allegedly delivering inflammatory speeches against the CAA and the proposed National Register of Citizens. The Delhi Police was quoted as saying, “[Sharjeel] had previously delivered one such speech in Jamia Millia Islamia on 13 December last year and thereafter one even more inflammatory against the government which is being widely circulated on social media.”

The cops went on to add that the speeches had the “potential to harm the religious harmony” and the unity and integrity of India, for which the case was registered against him.

However, I submit he has not committed a crime. In Brandenburg versus Ohio, 395 US 444 (1969), the Supreme Court of the US held, “The constitutional guarantee of free speech does not permit a state to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”

Ex-JNU student Sharjeel Imam remarks do not constitute a crime and FIRs must be quashed, writes Markandey Katju

File image of Sharjeel Imam. Twitter @MilitaryUpdate_

This decision has stood the test of time, and is the law of the land in the US ever since. It was followed by two decisions of the Supreme Court of India in Arup Bhuyan versus State of Assam and Sri Indra Das versus State of Assam (both in 2011), and therefore is the law of the land in India too.

Accordingly, inflammatory speech is also protected by the Freedom of Speech guaranteed by Article 19(1)(a) of the Indian Constitution — unless it incites or produces imminent lawless action.

I disapprove of Sharjeel’s speech, and I am against the cutting-off  of Assam or the any part of the rest of the North East from India. However, I do not see how his speech would incite or produce imminent lawless action. The word ‘imminent’ in the Brandenburg test is extremely important. It stresses on the time element, and makes more defined and more rigorous Justice Oliver Wendell Holmes’ ‘clear and present danger’ test laid down in Schenck versus US, (1919) — Holmes’ test had replaced the vague ‘bad tendency test’ employed previously.

Therefore, I am of the opinion that Sharjeel Imam committed no crime and the FIRs against him deserve to be quashed by the high court under Article 226 of the Constitution or Section 482 of the Code of Criminal Procedure (CrPC).

In my opinion, applying the Brandenburg test, the prosecution against the Bhima Koregaon-accused Professor Saibaba of Delhi University, Dr Farooq Abdullah, Omar Abdullah, Mehbooba Mufti, Sajjad Lone, Syed Ahmed Shah Gilani, Shah Faesal and other political figures also deserves to be quashed. None of these persons in detention said anything that incited or produced imminent lawless action.

The author is a former judge, Supreme Court of India