Narsinghanand Case | Can A Citizen's Dissatisfaction With State Action Be Considered 'Subversive' Activity? : Asks Allahabad HC On Zubair's Plea

During the hearing, a bench of Justice Siddhartha Varma and Justice Yogendra Kumar Srivastava asked the complainant's counsel if a citizen's act of expressing dissatisfaction with the state's actions could be considered a subversive activity under Section 152 BNS.

For context, this provision criminalizes the acts of endangering sovereignty unity and integrity of India, with a punishment of life imprisonment.

The division bench posed several other questions to Advocate Adhitya Srinivasan, the counsel representing the complainant in the case. These included whether the technician can be responsible for subversive activity when the internet is not working, and the law is hampered. And could saying that there is a lot of pendency in the HC be considered a subversive activity?

The bench, however, clarified that by posing such questions, it was not expressing any views but was only trying to extract arguments from the complainant's counsel.

During the hearing, the division bench kept on seeking an explanation from Additional Advocate General Manish Goel and Advocate Srinivasan as to how Section 152 BNS was made out against Zubair and what constituted a subversive Activity.

For context, Section 152 BNS reads thus:

Whoever, purposely or knowingly, by words, either spoken or written, or by signs, or by visible representation, or by electronic communication or by use of financial mean, or otherwise, excites or attempts to excite, secession or armed rebellion or subversive activities, or encourages feelings of separatist activities or endangers sovereignty or unity and integrity of India; or indulges in or commits any such act shall be punished with imprisonment for life or with imprisonment which may extend to seven years and shall also be liable to fine. Explanation: Comments expressing disapprobation of the measures, or administrative or other action of the Government with a view to obtain their alteration by lawful means without exciting or attempting to excite the activities referred to in this section. 

Advocate Srinivasan argued that Zubair had only shared a portion of Yati Narsinghanand's speech, whereas Narsinghanand intended the entire speech to be circulated. He further claimed that Zubair's intent (mens rea) was evident, especially if his past actions actions were taken into account. Srinivasan pointed out that certain tweets by the petitioner in the past were 'disastrous'.

He added that the connection between Zubair tweets and the incident at Dasna were questions of facts to be dealt with during the trial and that it was not open for the writ court to deal with the same.

He also argued that Zubair's words had excited the mob for armed rebellion; when the police came, they were pelted with stones, and the police, being the state authority, its authority was undermined.

To this, Justice Srivastava asked certain questions in an attempt to extract arguments from the complainant's counsel, he remarked:

“Police also thought that the speech by Yati caused the mob of 100-150 people to come to the Dasna Temple. Can your FIR can be said to be a counterblast to the fir against Yati?”

Similarly, Justice Varma also raised some queries including the following questions:

Is the first informant an authority which was subverted?
If a citizen expresses dissatisfaction regarding actions of the state, can it be a subversive activity?
If Zubair posted an edited video? Can it be considered a crime? Circulating edited video is a crime.

Further, appearing for the State, AAG Goel, in his short submission before the bench rose for the dat, he apprised the bench about the statements of people who gathered at Dasna that they got to know about Yati's speech through Zubair's Twitter handle.

Though Justice Srivastava said that Yati Narsinghanand himself wanted his speech to be circulated widely, AAG Goel responded that Yati did not want a truncated version of his speech to be circulated, as was allegedly done by Zubair.

Significantly, Goel also submitted that Zubair had admitted before the IO that he had posted those tweets without checking the facts.

"The incident took place on the 4th and did not occur on the 30th or 3rd, only on the 4th. The petitioner made the tweets on the 3rd and continued on the 4th. Repeated tweets, and thereafter, the incident occurred, and the tweets continued till the 5th morning...The rampant disinformation on the internet instigated him (Zubair) to make posts. But in the explanation to IO, he has admitted to not checking the facts", he submitted.

Due to the paucity of time, the hearing couldn't conclude today and the same has now been adjourned till tomorrow.

Earlier today, during the pre-lunch hearing in the matter, Zubair's counsel submitted before the High Court that Zubair's Posts were made as part of his professional obligation as a fact checker and that such posts do not amount to any offence under the Bharatiya Nyaya Sanhita or the Indian Penal Code.

Arguing for Zubair, Senior Advocate Dilip Kumar submitted before the division bench that his client was exercising his freedom of speech by referring to the alleged controversial speech of Yati Narsinghanand and highlighting his conduct, and not just him, but many new articles and social media accounts had posted about the same issue.

Before the High Court, his counsel vehemently argued that no sections, including Section 152 BNS, were made out against Zubair as his posts lacked intention, as alleged in the FIR.