Sedition Against Tribals For FB Posts : SC Issues Notice On Plea Against Jharkhand HC Order Refusing To Quash FIR

The Supreme Court has issued notice on a petition challenging the judgment of Jharkhand High Court which declined to quash an FIR for sedition registered against four Adivasi activists for allegedly inciting violence by making Facebook posts supporting 'Pathalgadi' movement of Munda tribal community

The bench comprising Justices Nageswara Rao and Hemant Gupta issued notice after hearing Senior Advocate Colin Gonsalves, assisted by Advocates Joel and Amit Dwivedi.

'Pathalgadi' is a tribal tradition of erecting stone slabs to demarcate the area of their villages' jurisdiction.

Several Adivasi villages such as Khunti, Arki and Murhu in Jharkhand have done 'Pathalgadi' in the last two years. Based on the traditional practice of the Munda community, stone plaques inscribed with legal guarantees for Adivasis under Fifth Schedule of Constitution, provisions of Panchayat (Extension to Scheduled Areas) Act (PESA) and rules formulated by the Gram Sabha (village council), were erected at the entrance of the villages.

The petitioners -J Vikash Kora, Dharm Kishor Kullu, Emil Walter Kandulna and Ghanshyam Biruly - were alleged to have incited Munda tribal members in Khunti village to attack police officers on June 26, 2017. Four policemen posted as security guards of sitting BJP MP from Khunti, Kariya Munda, were allegedly abducted by villagers to retaliate a police attack on the village while a gram sabha was in process in Ghagra.

The FIR alleged that "incident happened because the innocent tribals were misled and influenced in the name of 'Adivasi Mahashabha' and 'A.C. Bharat Sarkar Kutumbh Pariwar' who had distorted the Constitution through social media and were spreading anti national feelings as well as disturbing the harmony existing between the different groups and castes."

Hence an F.I.R. was filed under Section 121(waging war against India), 121A (conspiracy to wage war against India), 124A(sedition) of Indian Penal Code and Sections 66A and 66F of the Information Technology Act. Seeking to quash this FIR, the accused filed a petition under S.482 of the Code of Criminal Procedure in the HC.

The HC single bench of Justice Rongon Mukhopadhay refused to quash the FIR after observing that the Facebook posts evidenced a prima facie intention to commit sedition. Some of the Facebook posts cited by the prosecution said : "I don't want your Aaadhar card; My identity is 'Pathargari'", "All constitutional steps should be taken so that England, USA and United Nations feel compelled to act for the freedom of tribals", "Khunti village wants to follow only customary law, PESA Act and Gram Sabha", "Spread the Bank of Gram Sabha across the nation".

The special leave petition filed against this judgment of the High Court stated that the petitioners had no link with the attack allegedly carried out by the villagers.

"the present criminal proceedings are a blatant attempt to reverse engineer a crime to link disconnected people to a stray incident of firing of arrows in some obscure village inhabited largely by illiterate people who presumably do not even have access to Facebook or can access Facebook", stated the SLP filed through Advocate Joel.

Challenging the reasoning adopted by the HC in upholding prima facie case of sedition based on Facebook posts, the SLP said :

"It is submitted that one of the four 'glaring examples' which has been cited by the Hon'ble High Court (vide paragraph 18) is a refusal by one of the accused persons to be identified by Aadhar cards and instead be identified by indigenous practices like 'Pathargarhi'. It is submitted that this Hon'ble Court itself has held that use of Aadhar cards is not mandatory and has also laid down detailed guidelines in this regard.

Another example of a glaring example has been the commercial proposal to start something called a 'Bank of Gram Sabha'. It is submitted that the starting of cooperative societies and banks cannot by any stretch of imagination be considered as an act of Sedition.

It is submitted that the third urges 'Adivasis' to follow the Constitution and earn the respect of certain foreign countries; while the fourth example urges proper implementation of PESA i.e. Panchayats (Extension to Scheduled Areas) Act. It is submitted that these statements cannot by any stretch of imagination be called an act of Sedition. 

The impugned judgment is "plagued by needless paranoia and has grossly overestimated the viciousness contained in an otherwise innocuous Facebook post", contended the petitioners.

The alleged attack by illiterate villagers by bows and arrows cannot be termed as 'waging war against India' by any stretch of imagination. The offences under Information Technology Act are applied without any application of mind, as evident from the invocation of Section 66A, which was struck down in Shreya Singhal case. Posting of any messages on Facebook cannot by itself be regarded as an act of Cyber Terrorism, added the petition.