Gauhati HC Grants Bail To Writer Who Allegedly Questioned Martyr Status Of 22 CAPF Soldiers Involved In Anti-Naxal Operation

KEY TAKEAWAYS

• The article is based on the case of Sikha Sharma v. the State of Assam.
• The case deal with Sedition laws under the Indian Penal Code and the right of Freedom of Speech and Expression under the Constitution of India.
• The accused petitioner denigrated and disregarded the martyrs' sacrifice by advising the "Media" not to incite public opinion
• She has been ordered by the Court to refrain from committing any similar offences in the future for which she is convicted or suspected.

INTRODUCTION

The Gauhati High Court on Monday, April 19th, observed that prima facie, Assam-based writer Sikha Sarma had expressed her personal views on the use of the word 'Swahid/martyr' in respect of 22 CAPF soldiers who died in action or were killed on duty

The petitioner, Smti. Sikha Sarma has asked for bail under Sections 294A/124A/500/506 of the IPC and Section 45 of the I.T. Act in this petition filed under Section 439 Cr.P.C.

According to the FIR, the accused petitioner posted a Facebook post on April 5, 2021, showing disrespect for the nation's martyrs, and it was also alleged that in her post, the accused petitioner maligned and disregarded the martyrs' sacrifice by urging 'Media' not to generate public sentiments in their favour and not to refer to them as 'Swahids' because they are paid for their service.

DETAILS OF THE CASE

Mr A.M. Borah, educated Senior Counsel representing the accused plaintiff, claims that the accused is a well-known writer who has published four best-selling Assamese novels, a radio artist, and a singer, among other things. Mr Borah contends that the accused petitioner did not commit the alleged offences as outlined in the F.I.R. because she posted the messages on her Facebook account with no malafide intent.

By doing so, the accused petitioner did not make any anti-national statements, nor did he make any statements that incite or threaten to incite animosity, enmity, disrespect, or disaffection against the legal government.

Mr Borah also claims that since the term "Swahid/martyr" is not specified in statute or by any government notices, the accused petitioner did not commit any legal wrongdoing by exercising her right to free speech in good faith.

Mr Borah claims that the Ministry of Home Affairs has given no such order or notification in the case of Central Armed Police Forces (CAPF) personnel killed in action while performing their duties. Their families/next of kin, on the other hand, are entitled to a full family pension under the Liberalised Pensionary Award Laws, i.e., the last pay drawn, as well as ex gratia payments in accordance with the rules, in addition to any other benefits that may be available.

Mr Borah has cited the following Supreme Court decisions: i) Kedar Nath Singh Vs. The state of Bihar reported in 1962 Supp, SCR 769; ii) Bilal Ahmed Kaloo Vs. The State of A.P., reported in (1997) 7 SCC 431; and iii) Common Cause and Anr. Vs. Union of India reported in (1997) 7 SCC 431.

Ms S.H. Bora learned Addl. P.P., Assam, appearing for the State respondent, contends that the case diary reveals that the investigating officer seized a copy of all the disputed relevant seditious Facebook posts of the accused petitioner and that a reading of the same, taken as a whole, reveals that the accused petitioner has shown her mental tendency to demoralize the armed and paramilitary forces.

It is also alleged that in her article, the accused petitioner denigrated and disregarded the martyrs' sacrifice by advising the "Media" not to incite public opinion in their favour or to refer to them as "Swahids" because they are paid for the services they provide to the nation.

“An individual who draws a paycheck for his service cannot be considered a martyr/swahid if he dies on duty,” she wrote in an offensive message. If this is the case, an electrical worker who dies from an electric shock should be considered Swahid as well. Do not elicit emotional responses from the public via the news media.”

According to the FIR, this defamatory statement sparked public outrage on social media on the same day that the nation was mourning the martyrdom of 22 Jawans killed during an anti-Naxal operation in Chattisgarh on April 3, 2021, which included two jawans from Assam, Swahid Bablu Rabha and Swahid Dilip Das.

The accused petitioner's arrest seems to have stemmed primarily from the crime of "sedition," which is punishable under Section 124A of the Indian Penal Code.

The crime of 'Sedition' entails three elements: 1. that the accused spoke, wrote, made signs or representations, or did anything else; 2. that the accused incited or attempted to incite hate or contempt, or excited or attempted to excite disaffection; and 3. that the hatred, contempt, or disaffection was directed at the lawfully formed government.

This section of the IPC, it should be noted, does not conflict with the constitutional right to freedom of speech guaranteed by Article 19(1)(a) of the Indian Constitution, and as a result, the offender's purpose must be deduced from the language used.

The Indian Constitution states that all people have the right to freedom of speech and expression (Article 19(1)(a)). The right to freely express one's own beliefs and opinions through words, writing, publishing, images or any other means is known as freedom of speech and expression. It thus encompasses the communication of one's ideas by any means or recognizable representation, such as gestures, signs, and the like. The freedom of the press is included in this category since this term often connotes printing. The aim must be the free dissemination of ideas, which can be achieved on the internet or through the press. The freedom of circulation ensures the spread of ideas.

It should be noted that the accused petitioner purportedly shared her personal views on the use of the word "Swahid/martyr" on social media in respect of 22 brave hearts/patriot soldiers, including two such soldiers from the state of Assam, who died in action or were killed while on duty, eliciting widespread criticism on social media.

CONCLUSION

After considering the pros and cons of the allegations and evidence gathered thus far by the investigating officer in the case, as well as the threat to the prisoners' health posed by the ongoing second wave of novel Covid-19 pandemic, the Hon’ble Supreme Court and the High Court are of the considered opinion that further detention should be continued.

She has been ordered by the Court to refrain from committing any similar offences in the future for which she is convicted or suspected.

As a result, the accused will be released on bail of Rs.30,000/- (Rupees Thirty Thousand) with one surety of the same sum, subject to the approval of the learned Chief Judicial Magistrate, Kamrup (Metro) at Guwahati.