Crackdown or overreach? Legal experts weigh in on Assam’s arrests over pro-Pakistan comments on social media

The Assam government’s continued crackdown on individuals accused of making “anti-national” or “anti-Hindu” remarks in the wake of the Pahalgam terror attack has sparked a wider legal and constitutional debate. 

With 97 people arrested so far, including two new arrests from Tinsukia and Nagaon districts, Chief Minister Himanta Biswa Sarma has maintained that the state is taking firm action against what he called "anti-Hindu elements."

However, legal experts caution that such arrests must be handled carefully within the framework of constitutional freedoms, especially the right to free speech, and must not slide into arbitrary enforcement.

Arrests Must Be Case-Specific: Each Statement Matters

According to Anshuman Bora, Senior Advocate at the Gauhati High Court, each of the 94+ FIRs registered in such cases must be examined individually.

“We cannot generalise these arrests. Each case must be assessed on its own merit, based on the exact statement made by the accused. A remark may be controversial or unpopular, but it only becomes punishable if it qualifies as an offence under specific legal provisions like the Information Technology Act or relevant sections of the Indian Penal Code (IPC),” Bora explained.

He added that not all provocative statements may amount to criminal offences, especially if they do not meet the legal threshold for sedition, promoting enmity, or incitement.

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Electronic Evidence Is Key — But Tedious

Given that most of the alleged offences were committed through social media posts or messages, digital evidence becomes the cornerstone of investigation and prosecution. Bora noted that police must follow proper legal procedures for collecting, preserving, and authenticating such material — including forensic verification — before filing charges.

“The entire outcome of such cases will hinge on how thoroughly and lawfully the police collect electronic evidence. If mishandled, it could weaken the prosecution’s case or even lead to acquittals,” he warned.

Balancing Free Speech and Public Sentiment

The crackdown raises a fundamental question: Where does free speech end and criminal culpability begin?

Bora acknowledged that while freedom of speech is a constitutional right, it is subject to reasonable restrictions, especially when a statement prima facie incites hatred, promotes enmity, or threatens public order.

“You cannot use ‘freedom of speech’ as a shield if your statement crosses into criminal territory. However, if the speech doesn’t meet that legal threshold, arresting someone could amount to misuse of power,” he said.

He also cautioned that public sentiment or political pressure must not cloud legal judgment: “Even if people or the government disagree with a view, that alone doesn’t make it illegal. Law must be the only yardstick.”

Are Safeguards Adequate?

While the current legal framework does offer safeguards, Bora admits there are grey areas in enforcement. For offences carrying less than seven years’ imprisonment, police are advised (not mandated) to issue a notice before arrest under Supreme Court guidelines. But that discretion sometimes results in pre-emptive arrests without notice.

“The protection exists, but its application depends heavily on how the investigating officer justifies the urgency or inevitability of arrest,” he added.
 

Legal Defence and Challenges Ahead

For those accused in such cases, legal defence would revolve around the exact content of their statements, context, and intent. If the electronic evidence is weak or the statements are taken out of context, courts could dismiss charges or even issue acquittals.

“If the prosecution fails to establish that the accused’s words meet the criteria of a cognizable offence, or if digital forensics are not properly handled, conviction will be difficult,” Bora noted.

As Assam continues its campaign to curb what it terms “anti-national” activities in the digital space, legal experts urge caution. While national security is paramount, protecting fundamental rights and avoiding misuse of legal provisions is equally crucial. The judiciary is expected to play a balancing role in ensuring that freedom of expression is not sacrificed at the altar of public outrage or political expediency.

(With additional inputs from Achintya Patangia)