madras high court

Madras High Court: In a petition filed by K Annamalai the State President of the Bharatiya Janata Party (‘BJP’) in Tamil Nadu, praying to quash the criminal proceedings initiated against him for his remarks against a Christian Missionary NGO, N. Anand Venkatesh, J. while holding that there exists a prima facie intent to create hatred towards a particular religion, refused to quash the criminal proceedings. Further, it said that the statements were made by a person of stature, whose words have a lot of impact on the masses and as a result, they, prima facie, have a psychological impact on the targeted group. Therefore, the non-physical impact of the statements made will also come within the scope of Section 153-A of the IPC.

K Annamalai is stated to have given an interview to a YouTube channel named ‘Pesu Thamizha Pesu’ on 22-10-2022, wherein he expressed his opinion regarding the ban on crackers during the Diwali festival. The alleged controversial statement/opinion formed a portion of it and edited footage running to nearly six minutes was culled out and posted on the Twitter account of the petitioner’s party in the State. The respondent, an environmentalist, had access to this Twitter post and felt that the post had the propensity of spreading hatred between two communities ie., between Christians and Hindus, and that it would also create divisions amongst religious groups. Therefore, he gave a complaint to the Director General of Police, the Home Secretary and the Commissioner of Police, immediately. However, the respondent was informed by the police that the YouTube interview did not attract any breach of public peace nor prima facie make out a case against the accused persons.

Thereafter, the respondent filed an application under Sections 156(3) and 200 CrPC before the Judicial Magistrate who, prima facie found that offences have been made out against K Annamalai under Sections 153-A and 505(1)(b) of the Penal Code (‘IPC’). The Magistrate accordingly issued a process and proceeded to summon him. The Magistrate also declined to issue process against the interviewer. Challenging the summoning order, this petition has been filed.

The Court examined the ingredients of Sections 153-A and 505 IPC and said that a man addressing a gathering of 100 people and a man addressing through social media to the entire world are two different scenarios altogether. The test that is applied for the former cannot be test for the latter. When the law was enacted, the law makers were exposed only to the former scenario, and they would have never dreamt that the latter scenario would come into being at some time in future. Hence, the Courts must step in to take note of the changed scenario and interpret the provisions of law.

The Court remarked that the interpretation of Sections 153-A and 505 IPC continued to hold the field from a traditional approach wherein the Court, apart from looking at the intent of the maker of a comment, was also prima facie looking at a palpable consequence like violence, disturbance to law and order, disturbance to public order, etc. This line of thinking must necessarily change after the advent of technology and more particularly after social media has started taking over our lives.

After taking note of Pravasi Bhalai Sangathan v. Union of India, (2014) 11 SCC 477, wherein it was observed that even the psychological impact that will be caused in the mind of the recipient of the message can be the basis for deciding hate speech. Hate speech can lay the groundwork, which, at a later point of time, can lead to discrimination, ostracism, violence and in the most extreme cases, genocide. The Court opined that the psychological impact on an individual or a group can also be brought within the meaning of definition of the term ‘hate speech’. This decision moved from the traditional approach, which expected a gross physical act to a modern approach with a psychological impact.

After taking note of Patricia Mukhim v. State of Meghalaya, (2021) 15 SCC 35 the Court while examining the distinction between free speech and hate speech, said that the courts must be very careful before concluding as to whether the speech made is a free speech or a hate speech.

While construing the term ‘communalism’, the Court said that communalism in India is used as the ideology, which attempts to construct separate identities based on culture, religion, caste and community. It is used to incite strife and violence and create tension between the communities.

The Court said that there are two significant contexts, in which, the State intervenes in the functioning of the religious spheres; firstly, by ensuring the rule of law; and secondly in a developmental sense, by imparting positive discrimination towards certain religious minorities. There is absolute freedom of conscience, belief and religion for all citizens of India.

The Court remarked that the communally delicate sensitivity of the people has been exploited by politically interested and fringe groups for their own selfish gains. Thus, both the minority as well as the majority communalism have largely been responsible for the complexities that are associated with the Indian notion of secularism. Further, it said that although the Supreme Court has consistently held that secularism is a part of the basic structure of the Indian Constitution ,the people of India, in entire post-colonial history, are grappling with the problem of balancing two notions of secularism, namely the intervention of the State in religious affairs in the name of rule of law and the maintenance of the secular State for protecting individual freedom of conscience.

The Court noted that K Annamalai in his interview said that there is a Christian Missionary NGO, which is internationally funded, and it is involved in destroying Hindu culture by filing cases in the Supreme Court by preventing Hindus from bursting crackers. Thus, it said that prima facie, the statements disclose a divisive intent on the part of K Annamalai to project as if a Christian NGO is acting against Hindu culture. The intent can be gathered from the fact that the statements were made two days before the Diwali festival, and this extract of the interview was culled out from the main interview, and it was shared on the twitter handle of his party.

The Court said that K. Annamalai is a former Senior IPS Officer, who is expected to know the laws of the land. He is a well-known leader and a mass influencer. Therefore, the statements made by him will have a very wide reach and influence on the people particularly those belonging to the Hindu religion, and it carries a lot of impact on this demographic group. The target of his speech is aimed towards a particular religious group and the minority religious group is attempting to destroy the culture of the majority religious group.

The Court added that the public was, therefore, led to believe that Christians are out to finish off Hindus and that Hindus were running to the Supreme Court to defend it. It remarked that a petition filed in the interests of the environment was suddenly converted into a vehicle for communal tension.

Thus, it held that there exists a prima facie intent to create hatred towards a particular religion. Further, it stated that the statements were made by a person of stature, whose words have a lot of impact on the masses and as a result, they, prima facie, have a psychological impact on the targeted group.

K Annamalai submitted that even after 400 days after the statements made by the petitioner, nothing had happened in terms of violence or disturbance to public order and that therefore, the offence itself is not made out. The Court said that to make out an offence under Section 153-A IPC, there must be words, which are either spoken or written and they must promote or attempt to promote on the ground of religion, disharmony or feelings of enmity or hatred or ill-will between different religious groups or communities and that are likely to disturb the public tranquility. The contents of the statements made by the petitioner prima facie satisfy every one of the ingredients mentioned supra.

K Annamalai further submitted that there is no material to show that the statements made by him created enmity or hatred or ill-will nor they disturb the public tranquility. After referring to Pravasi Bhalai Sangathan (supra), wherein the Court warned that such statements can act like a ticking bomb, which will wait to burst at the appropriate point of time by creating violence and in the most extreme cases, even to genocide.

The Court said the twitter handle, in which the shortened and focused version has been posted, is permanent data available. At an appropriate time, this data can be circulated, and the ticking bomb will have its desired effect at that point of time. Hence, the psychological impact of a statement made by a popular leader must not be merely confined by testing it only to immediate physical harm and it is the duty of the Court to see if it has caused a silent harm in the psych of the targeted group, which, at a later point of time, will have their desired effect in terms of violence or even resulting in genocide. Therefore, the non-physical impact of the statements made will also come within the scope of Section 153A of the IPC.

Further, it added that Sections 153-A and 505 IPC are analogous to each other. Hence, if the offence under Section 153A is made out, the offence under Section 505(1)(b) IPC is also prima facie made out.

[K.Annamalai v V.Piyush, Criminal Original Petition No.27142 of 2023, Order dated 08-02-2024]

Advocates who appeared in this case :

For Petitioner: Advocate C.V. Shyam Sundar

For Respondent: Advocate V. Suresh

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