freedom of speech and expression

Case BriefsSupreme Court

Supreme Court: Upholding the citizens’ right to criticise the government, the bench of UU Lalit* and Vineet Saran, JJ, has quashed the FIR lodged against Journalist Vinod Dua over his YouTube show on communal riots in Delhi earlier this year.

The Court held,

“… a citizen has a right to criticize or comment upon the measures undertaken by the Government and its functionaries, so long as he does not incite people to violence against the Government established by law or with the intention of creating public disorder; and that it is only when the words or expressions have pernicious tendency or intention of creating public disorder or disturbance of law and order that Sections 124A and 505 of the IPC must step in.”

What was the controversy?

According to the complaint, Dua had accused Prime Minister Narendra Modi of using “deaths and terror attacks” to get votes.

The FIR read,

“On 30th March, 2020, Mr. Vinod Dua, in his show namely The Vinod Dua Show on YouTube, has made unfounded and bizarre allegations (details of particular moments are provided below) by stating following facts at 5 minutes and 9 seconds of the video, he has stated that Narendra Modi has used deaths and terror attacks to garner votes. At 5 minutes and 45 seconds of the video, he claims that the government does not have enough testing facilities and has made false statements about the availability of the Personal Protective Kits (PPE) and has stated that there is no sufficient information on those. Further, he also went on to state that ventilators and sanitizer exports were stopped only on 24th March 2020.”

According to the F.I.R. “…by making such false statements, Mr.Vinod Dua spread fear amongst the people. This video will only create a situation of unrest amongst the public which will result in panic and people not obeying the lockdown to come out and hoard essentials which is absolutely unnecessary.…. The rumours were spread with intent to cause, or which is likely to cause, fear or alarm to the public or to any section of the public, whereby any person may be induced to commit an offence against the State or against the public tranquillity.”

Why no case of sedition was made out against Dua?

Deaths and terror attacks

The statements attributed to Dua that the Prime Minister had used deaths and terror attacks to garner votes or that the Prime Minister had garnered votes through acts of terrorism, were not made in the Talk Show. No such assertions find place in the true translation nor were any objections raised that the translated version was in any way incorrect. The petitioner did say that the air strikes by India on Balakot and attacks on Pathankot and Pulwama were used as political events to garner votes but no allegations were made against the Prime Minister as was stated in the F.I.R.

COVID-19 Testing facilities

Considering the size of the population of this country, the testing facilities to gauge and check the spread and effect of the Pandemic, at least in the initial stages of the surge, were not exactly adequate. If in that light, the petitioner made any comments about testing facilities or PPE Suits, N-95 masks and masks of ply, those comments in first two statements, cannot be anything other than appraisal of the situation then obtaining.

Migrant workers

As on 30.03.2020, migrant workers in huge numbers were moving towards their hometowns/villages. In the circumstances, there would naturally be some apprehension about the shelter and food to be provided to them en-route. The former Chief Statistician had expressed a possibility with the intent to invite the attention of the authorities.

If Dua, in his talk show uploaded on 30.03.2020, that is even before the matter was taken up by the Supreme Court, made certain assertions, he would be within his rights to say that as a Journalist he was touching upon issues of great concern so that adequate attention could be bestowed to the prevailing problems.

It cannot be said that the petitioner was spreading any false information or rumours.

“It is not the case of the respondents that the migrant workers started moving towards their hometowns/villages purely as a result of the statements made by the petitioner. Such movement of migrant workers had begun long before.”

In the circumstances, these statements can neither be taken to be an attempt to incite migrant workers to start moving towards their hometowns or villages nor can it be taken to be an incitement for causing any food riots. The situation was definitely alarming around 30.03.2020 and as a journalist if the petitioner showed some concern, could it be said that he committed offences as alleged.

Conclusion

According to the Court, only such activities which would be intended or have a tendency to create disorder or disturbance of public peace by resort to violence – are rendered penal.

Based on the aforementioned analysis of the statements, the Court said that the said statements,

“can at best be termed as expression of disapprobation of actions of the Government and its functionaries so that prevailing situation could be addressed quickly and efficiently. They were certainly not made with the intent to incite people or showed tendency to create disorder or disturbance of public peace by resort to violence.”

Hence, the prosecution of Dua for the offences punishable under Sections 124A and 505 (1) (b) of the IPC3 would be unjust. Those offences, going by the allegations in the FIR and other attending circumstances, are not made out at all and any prosecution in respect thereof would be violative of the rights of the petitioner guaranteed under Article 19(1)(a) of the Constitution.

[Vinod Dua v. Union of India, 2021 SCC OnLine SC 414, decided on 03.06.2021]

Judgment by: Justice UU Lalit

For Petitioner: Vikas Singh, Senior Advocate

For Respondents: Solicitor General Tushar Mehta, Additional Solicitor General S.V. Raju, Senior Advocates Mahesh Jethamalani and Vinay Navre

Case BriefsSupreme Court

Supreme Court: After two Telegu News channels, namely, TV5 and ABN, approached the Court aggrieved by a First Information Report registered against them for sedition under the provisions of Sections 124, 153A, 505 read with Section 120B of the Penal Code 1860, the 3-judge bench of Dr. DY Chandrachud, L. Nageswara Rao and S. Ravindra Bhat, JJ has issued notice in the matter, returnable after 6 weeks and said,

“… the ambit and parameters of the provisions of Sections 124A, 153A and 505 of the Indian Penal Code 1860 would require interpretation, particularly in the context of the right of the electronic and print media to communicate news, information and the rights, even those that may be critical of the prevailing regime in any part of the nation.”

The FIR indicates that it is a “suo motu case” based on an enquiry report of the DIG, CID, AP, Mangalagiri, Guntur District dated 13 May 2021. The two channels had broadcasted certain programmes wherein Raghurama Krishnam Raju, Member of Parliament had allegedly expressed views critical of the State Government and the Chief Minister. While Raju, has been named as the first accused, TV5 and ABN have been named as the second and third accused. It is pertinent to note that Raghurama Krishnam Raju has been granted bail by the Supreme Court.

It was submitted before the Court that the allegations in the FIR do not establish any offences under the provisions which have been invoked against them and that,

“… the FIR constitutes an attempt to muzzle the electronic media and is an assault on the freedom of speech and expression under Article 19(1)(a) of the Constitution.”

It was also submitted that while dealing with the suo motu Covid-19 case, the Court, in its order dated 30 April 2021, had made categoric observations in regard to the need for restraint on the invocation of the coercive arm of the law against persons voicing comments critical to matters of governance which arise in the context of the Covid crisis.

While issuing notice, the Court directed that,

“Till the next date of listing, there shall be a stay on the respondents adopting any coercive proceedings in pursuance of FIR No 12 of 2021 dated 14 May 2021 against the two television channels which are the petitioners before the Court, namely, TV5 and ABN, as well as their personnel.”

It is also important to note that in another case, the Court has issued notice in a plea seeking declaration of Section 124-A IPC to as unconstitutional and void.

Supreme Court to decide constitutionality of Section 124A IPC. Read why it came into force and why 5-judge bench in Kedar Nath Singh verdict found it constitutional

[Aamoda Broadcasting Company Private Limited v. State of Andhra Pradesh, 2021 SCC OnLine SC 407, order dated 31.05.2021]

For Petitioners: Mr. Sidharth Luthra, Sr. Adv. Ms. Prerna Singh, Adv. Mr. Guntur Pramod Kumar, AOR Mr. Anmol Kheta, Adv. Mr. Shezaan Hashmi, Adv. Mr. Shyam Divan, Sr. Adv. Mr. P.B Suresh, Adv. Mr. Vipin Nair, AOR Mr. Karthik Jayashankar, Adv. Mr. Sudipto Sircar, Adv. Mr. Agnish Aditya, Adv. Mr. Arindam Ghosh, Adv. Mr. Kutur Parikshit, Adv. Mr. Anshumaan Bahadur, Adv.

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Case BriefsHigh Courts

Rajsthan High Court: The Bench of Dinesh Mehta, J., slammed the ICAI for illegally withholding the result of a young girl-student of 21 years of age due to her alleged derogatory e-mail. The Bench remarked,

“The Institute of Chartered Accountants of India is a statutory body. Hence, its decisions, actions and adjudication are supposed to conform to the standards expected of State. A State that suppresses freedom of speech and inflicts or imposes extreme punishment treating an act or attempt of criticism and/or if it treats any suggestion for improvement as a challenge to its authority or supremacy is a State, that disregards rather violates fundamental rights of a citizens guaranteed by Article 19(1)(a) of our Constitution.”

Factual Fulcrum of the Case

On account of unprecedented situation of spread of Covid-19 and imposition of lock-down, the exams due in May, 2020 were cancelled by the ICAI and were re-scheduled to be conducted between 21-11-2020 to 14-12-2020. Owing to the said rescheduling, the Institute gave an option to all those candidates to either appear in the examinations to be held in November, 2020 or opt-out of examinations with a liberty to appear in subsequent examinations in January, 2021.

On 20-11-2020, the petitioner chose to address an e-mail to the office bearers of the Institute. In the said e-mail, the petitioner highlighted the situation of spread of Covid-19 and cautioned that if the examinations were held, it would lead to exponential growth in number of Covid cases. The thrust of her e-mail was only to suggest that online infrastructure be developed so that all levels of CA Examinations be conducted online. Evidently, the petitioner opted out of the November exams and appeared in all the papers/exams held as per above schedule.

On 22-02-2021, as a bolt from the blue, the Dy. Secretary (Examinations) wrote a e-mail informing the petitioner that her result had been put on hold, because of derogatory remarks she had made in her e-mail and an explanation was also sought as to why disciplinary proceedings not be initiated against her for the same. No sooner had the petitioner received the notice than she sent an e-mail expressing her unconditional apology for her inappropriate remarks. Regardless of the aforesaid letter, the institute proceeded to send her a communication with the subject “Alleged resort to unfair means/derogatory remarks during Chartered Accountants Examinations – November 2020.” Consequently, the petitioner appeared before the examination committee and put forth her explanation, but she was kept uninformed about the order/result of the hearing.

Later on, on surfing the official website on the day of result the petitioner found out that her result had been cancelled, under caption “ADOPTED UNFAIR MEANS. LETTER FOLLOWS”. On making a query she was informed by the institute that the Examination Committee had reached a conclusion that she was guilty of making derogatory remarks in the captioned examination and thus, her result had been cancelled.

Findings of the Court

Having waded through the record, the Court opined that not only the initiation of proceedings against the petitioner, but also the manner in which, the proceedings had been conducted so also its culmination in cancellation of petitioner’s result suffered from vices. On the perusal of the contentious e-mail sent by the petitioner, the Court said that the same was addressed to Institute’s President and other office bearers and not to the Examination Committee. Hence, the Examination Committee ought not have taken cognizance of an e-mail. Further, the Bench remarked,

“There is hardly anything in the e-mail, for which it can be alleged/ considered as or even construed to be derogatory. The very initiation of the proceedings against the petitioner alleging that the e-mail contains derogatory remarks was uncalled for and unwarranted. On the contrary, this Court feels that action of the respondents was rather over bearing or high handed.”

Quoting Voltaire, the Bench said, “With great power comes great responsibility”, thus, the Institute which is adorned with enormous power to elevate or uplift the lives of vulnerable & struggling students, is required to practice greater restraint in invoking its powers especially against the students. The Bench added,

“One cannot lose sight of the fact that on receipt of the notice dated 22-02-2021 itself, the petitioner had practically knelt down in subservience before respondent No.2 urging that she regretted her action and would not repeat the same in future.”

But for the reasons best known to the Examination Committee, instead of burrying the hatchet, it literally opened a battle-front and summoned the petitioner to Jaipur to defend her cause. Opining it disturbing that the petitioner was personally heard yet no order was ever communicated to her and that her result was cancelled that too, citing “adopted unfair means”; the Bench held that the actions of the institute were without jurisdiction and against the principles of natural justice on one hand and capricious and arbitrary on the other.

Evidently, the Institute had warned the petitioner of dire consequences, if she further indulged in addressing any such communication to ICAI or any other organization concerning examinations.  Indisputably, the petitioner had not written even a single letter to the Institute or to any other authority after 20-11-2020. The respondent-Institute, therefore bound by its own notice was estopped from initiating any action much less disciplinary proceedings. Hence, the Bench held that the impugned proceedings were fundamentally without any basis besides being arbitrary. Since there was no mentioning or even indication of cancellation of result neither in the e-mail dated 22-02-2021 nor in the subsequent communications, there remains not even an iota of doubt that the impugned order of cancelling the result was inherently illegal, falling foul to Article 14 of the Constitution of India and the same was quashed.

Whether the Examination Committee had the jurisdiction to cancel petitioner’s result?

The moot question, required to be decided was whether the Examination Committee had the jurisdiction to cancel petitioner’s result in the present factual matrix.  Regulation 41 of the Regulations of 1988 revealed that the Examination Committee can initiate disciplinary proceedings in connection with the Examination. The language used therein is unequivocal, leaving no room for ambiguity that an action can be taken if a candidate behaves in a disorderly manner in or near an examination hall or has resorted to unfair means. The incidence or the e-mail in question had no nexus or proximity with the examination hall, hence, the proceedings under challenge were void since their inception or very beginning.

The institute’s action of reflecting such mis-information in its official website, in clear contrast with the actual facts is beyond acceptable limits.

“The Examination Committee ought to have realized that such casual rather reckless approach involving imputation on reputation may have serious repercussions on emotional or mental equilibrium of a student.”

Verdict

The writ petition was thus, allowed with the cost of litigation quantified at Rs.20,000. On referring the result produced by the institute in a sealed envelope, the Court found out that the petitioner had passed the CA Intermediate Examination. Hence, the ICAI was directed to send original mark sheet and certificate to the petitioner and further, directed the institute to appropriately reflect petitioner’s result on its official portal. Lastly, the Bench warned the ICAI to take criticisms in positive stride, the Court stated,

“A professional body like the respondent Institute should introspect and ensure that its over-enthusiasm of attaining professional excellence and endeavors of setting high standards of discipline should not silence rather stifle the speech of a student or its member in the manner that has been done in the present case.”

[Risha Lodha v. ICAI,  2021 SCC OnLine Raj 457, decided on 13-05-2021]

Kamini Sharma, Editorial Assistant has put this report together 

Appearance before the Court by:

For Petitioner(s): Adv. Vikas Balia

For ICAI: Adv. Manoj Bhandari and Adv. Anjay Kothari

Case BriefsHigh Courts

 Gauhati High Court: The Bench of Ajit Borthakur, J., granted bail to the renowned Assamese writer, Sikha Sarma in connection with sedition case lodged against her for posting controversial facebook post regarding death of 22 CrPF jawans in an anti-naxal operation.

Factual Matrix of the Case

An F.I.R. has been lodged against the petitioner alleging that her facebook post posted on 05.04.2021 showed disrespect to the martyrs of the Nation. It was also alleged that the accused petitioner in her post maligned and disregarded the sacrifice of the martyrs by urging ‘Media’ not to generate public sentiments in their favour and not to term them as ‘Swahids’ as they were drawing salary for the services they were providing to the nation. It was further alleged that the defamatory post had also encountered public outrage in social media as on that day, the nation was mourning the martyrdom of 22 Jawans killed during anti-naxal operation in Chattisgarh on 03-04-2021 which also included two jawans from the State of Assam. The alleged post read as:

“A person who draws salary for his service cannot be considered to be a martyr/swahid if he dies on duty. If it is so, then, an electrical worker who dies in an electric shock should also be considered as Swahid. News media do not make the public emotional.”

The state was of the opinion that the accused not only showed disrespect to the martyrs of the nation but at the same time tried to invoke anti-social element that killing of our soldier is not a crime. Through the said post the accused tried to create hatred against the government in the execution of lawful duty. Further, her statement fermented disaffection towards the government of India and had potential to give rise to terrorist and anti-national forces.

Stand Taken by the Accused

The counsel for the petitioner, Mr. A.M. Borah argued that the accused had no malafide while posting the messages on her facebook account. She neither made any anti-national statement nor made the statement which brings or attempts to bring or create any hatred, enmity, contempt or disaffection towards the Government established by law. It was submitted by the petitioner that the word ‘Swahid/martyr’ is not defined in law or by any Government notifications etc., the accused petitioner committed no offence in law for exercising her freedom of expression on good faith. The reliance was placed by the petitioner on the judgments of the Supreme Court in Bilal Ahmed Kaloo v. State of A.P., 1997) 7 SCC 431 and  Common Cause v. Union of India, in Writ Petition (Civil) No. 683/2016.

Findings of the Court

Considering the abovementioned, the Bench opined that,

“The accused petitioner prima facie expressed her personal views on the use of the term ‘Swahid/martyr’ through social network in respect of 22 brave hearts/patriot soldiers including 2 such soldiers from the State of Assam, who laid their lives in action or killed on duty, which evoked widespread criticism in social networking platform.”

Having considered the pros and cons of the allegations and evidence so far collected by the investigating officer and also, taking note of the apprehension of threat to health of the prisoners due to the ongoing second wave of novel Covid-19 pandemic, the Bench opined that  further continuation of detention of the accused petitioner, who is a woman and had been in judicial custody since 07-04-2021, may not be necessary in the interest of the ongoing investigation. Accordingly, the Court allowed the bail application of the petitioner and directed the authority concerned to release the petitioner on bail of Rs.30,000 with one surety of like amount.

[Sikha Sarma v. State of Assam, 2021 SCC OnLine Gau 1070, decided on 19-04-2021]

Kamini Sharma, Editorial Assistant has put this report together 

Appearance before the Court by:

Advocate for the Petitioner: A M Bora
Advocate for the Respondent: PP, Assam

Case BriefsSupreme Court

“This Court stands as a staunch proponent of the freedom of the media to report court proceedings. This we believe is integral to the freedom of speech and expression of those who speak, of those who wish to hear and to be heard and above all, in holding the judiciary accountable to the values which justify its existence as a constitutional institution.”

Supreme Court: In the case where the Election Commission of India (EC) had sought a direction restraining the media from reporting on court proceedings after Madras High Court made certain oral remarks attributing responsibility to the EC for the present surge in the number of cases of COVID-19, due to their failure to implement appropriate COVID-19 safety measures and protocol during the elections, the bench of Dr. DY Chandrachud* and MR Shah, JJ has refused to restrain the media from reporting on Court proceedings.

“It is trite to say that a formal opinion of a judicial institution is reflected through its judgments and orders, and not its oral observations during the hearing. Hence, in view of the above discussion, we find no substance in the prayer of the EC for restraining the media from reporting on court proceedings.”

During the course of the hearing, the Madras High Court had allegedly orally observed that the EC is “the institution that is singularly responsible for the second wave of COVID-19” and that the EC “should be put up for murder charges”. These remarks, though not part of the order of the High Court, were reported in the print, electronic and tele media.

EC had alleged that these remarks are baseless, and have tarnished image of the EC, which is an independent constitutional authority.

Noticing that these oral remarks are not a part of the official judicial record, and therefore, the question of expunging them did not arise, the Supreme Court said that,

“… the High Court was faced with a situation of rising cases of COVID-19 and, as a constitutional Court, was entrusted with protecting the life and liberty of citizens. The remarks of the High Court were harsh. The metaphor inappropriate. The High Court – if indeed it did make the oral observations which have been alluded to – did not seek to attribute culpability for the COVID-19 pandemic in the country to the EC. What instead it would have intended to do was to urge the EC to ensure stricter compliance of COVID-19 related protocols during elections.”

Tasked with balancing the rights of two independent constitutional authorities, the Court observed that the High Courts are often the first point of contact for citizens whose fundamental rights have been violated. High Courts are constantly in touch with ground realities in their jurisdictions.

“During the COVID-19 pandemic, the High Courts across the country have shown commendable foresight in managing the public health crisis which threatens to submerge humanity. Their anguish when they come face to face with reality must be understood in that sense.”

On the other hand, the EC has facilitated the operation of our constitutional democracy by conducting free and fair elections and regulating conduct around them for over seven decades.

“Its independence and integrity are essential for democracy to thrive. This responsibility covers powers, duties and myriad functions which are essential for conducting the periodic exercise of breathing life into our democratic political spaces.”

While the Court held that the High Court was faced with a situation of rising cases of COVID-19 and, as a constitutional Court, was entrusted with protecting the life and liberty of citizens and hence, only intended to urge the EC to ensure stricter compliance of COVID-19 related protocols during elections, it emphasised on the need for judges to exercise caution in off-the-cuff remarks in open court, which may be susceptible to misinterpretation.

“Language, both on the Bench and in judgments, must comport with judicial propriety. Language is an important instrument of a judicial process which is sensitive to constitutional values. Judicial language is a window to a conscience sensitive to constitutional ethos. Bereft of its understated balance, language risks losing its symbolism as a protector of human dignity. The power of judicial review is entrusted to the High Courts under the Constitution. So high is its pedestal that it constitutes a part of the basic features of the Constitution. Yet responsibility bears a direct co-relationship with the nature and dimensions of the entrustment of power. A degree of caution and circumspection by the High Court would have allayed a grievance of the nature that has been urged in the present case.”

The Court concluded by saying that the oral observations during the course of the hearing have passed with the moment and do not constitute a part of the record.

[Chief Election Commissioner of India v. M.R Vijayabhaskar, 2021 SCC OnLine SC 364, decided on 06.05.2021]

*Judgment by: Justice Dr. DY Chandrachud

Appearances before the Court:

For EC: Senior Advocate Rakesh Dwivedi and Advocate Amit Sharma

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of UU Lalit, Indira Banerjee and KM Joseph, JJ has issued notice in a plea seeking declaration of Section 124-A IPC to as unconstitutional and void.

The order came after Senior Advocate Colin Gonalves submitted before the Court that the decision of the Court in Kedar Nath Singh v. State of Bihar, 1962 Supp. (2) SCR 769 requires reconsideration.

The notice is returnable on July 12, 2021.

Section 124-A IPC and it’s history 

124-A. Sedition.—Whoever, by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards,  [* * *] the Government established by law in  [India],  [* * *] shall be punished with 5[imprisonment for life], to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine.

Explanation 1.—The expression “disaffection” includes disloyalty and all feelings of enmity.

Explanation 2.—Comments expressing disapprobation of the measures of the Government with a view to obtain their alteration by lawful means, without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.

Explanation 3.—Comments expressing disapprobation of the administrative or other action of the Government without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.

The section corresponding to Section 124-A was originally Section 113 of Macaulay’s Draft Penal Code of 1837-39, but the section was omitted from the Indian Penal Code as it was enacted in 1860. The reason for the omission from the Code as enacted is not clear, but perhaps the legislative body did not feel sure about its authority to enact such a provision in the Code. Be that as it may, Section 124-A was not placed on the Statute Book until 1870, by Act 27 of 1870.[1]

Sedition, which is an offence against the State, was not an invention of the British Government in India, but has been known in England for centuries. Every State, whatever its form of Government, has to be armed with the power to punish those who, by their conduct, jeopardise the safety and stability of the State, or disseminate such feelings of disloyalty as have the tendency to lead to the disruption of the State or to public disorder.[2]

However, criticism on political matters is not of itself seditious. The test is the manner in which it is made. Candid and honest discussion is permitted. The law only interferes when the discussion passes the bounds of fair criticism. More especially will this be the case when the natural consequence of the prisoner’s conduct is to promote public disorder.[3]

Law laid down under Kedar Nath Singh

The 5-judge bench had held that the Section 1240A was constitutionally valid as it, “strikes the correct balance between individual fundamental rights and the interest of public order”

“… the explanations appended to the main body of the section make it clear that criticism of public measures or comment on Government action, however strongly worded, would be within reasonable limits and would be consistent with the fundamental right of freedom of speech and expression. It is only when the words, written or spoken, etc. which have the pernicious tendency or intention of creating public disorder or disturbance of law and order that the law steps in to prevent such activities in the interest of public order.”

The Court noticed that the gist of the offence of “sedition” is incitement to violence or the tendency or the intention to create public disorder by words spoken or written, which have the tendency or the effect of bringing the Government established by law into hatred or contempt or creating disaffection in the sense of disloyalty to the State.

“This Court, as the custodian and guarantor of the fundamental rights of the citizens, has the duty cast upon it of striking down any law which unduly restricts the freedom of speech and expression with which we are concerned in this case. But the freedom has to be guarded against becoming a licence for vilification and condemnation of the Government established by law, in words which incite violence or have the tendency to create public disorder. A citizen has a right to say or write whatever he likes about the Government, or its measures, by way of criticism or comment, so long as he does not incite people to violence against the Government established by law or with the intention of creating public disorder. The Court has, therefore, the duty cast upon it of drawing a clear line of demarcation between the ambit of a citizen’s fundamental right guaranteed under Article 19(1)(a) of the Constitution and the power of the legislature to impose reasonable restrictions on that guaranteed right in the interest of, inter alia, security of the State and public order.”

[Kishorechandra Wangkhemcha v. Union of India, 2021 SCC OnLine SC 374, order dated 30.04.2021]

[1] Kedar Nath Singh v. State of Bihar, 1962 Supp (2) SCR 769, Para 10

[2] Ibid

[3] Commentaries on the Laws of England, 21st Edn., Vol. IV, at pp. 141-42

Case BriefsSupreme Court

“Free speech of the citizens of this country cannot be stifled by implicating them in criminal cases, unless such speech has the tendency to affect public order.”

Supreme Court: The division bench of L. Nageswara Rao* and S. Ravindra Bhat, JJ has quashed the criminal case registered against Shillong Times Editor Patricia Mukhim under Sections 153 A, 500 and 505 (1) (c) of the Indian Penal Code, 1860.

Why was the case registered against Mukhim?

Last year, 25 unidentified boys had assaulted youngsters playing basketball in Block 4, Lawsohtun with iron rods and sticks, after which, Mukhim had, in a Facebook Post, written,

“Conrad Sangma CM Meghalaya, what happened yesterday at Lawsohtun where some Non-Tribal youth playing Basketball were assaulted with lethal weapons and are now in Hospital, is unacceptable in a state with a Government and a functional Police Force.

(…)

The fact that such attacker and trouble mongers since 1979 have never been arrested and if arrested never penalized according to law suggests that Meghalaya has been a failed State for a long time now.

(…)

We hope that this will not be yet another case lost in the Police files. We want action. Criminal elements have no community. They must be dealt with as per the law of the land. Why should our Non-Tribal brethren continue to live in perpetual fear in their own state? Those born and brought up here have as much right to call Meghalaya their State as the indigenous Tribal does. Period”

Following this, the Headman and the Secretary, Dorbar Shnong, Lawsohtun, Shillong filed a complaint that the statement made by the Appellant on Facebook incited communal tension which might instigate a communal conflict.

The Appellant filed a petition in the High Court of Meghalaya for quashing the FIR. The High Court, however, by its judgment dated 10.11.2020 dismissed the said petition.

Analysis

What does the law state?

Freedom of speech and expression guaranteed by Article 19 (1) (a) of the Constitution is a very valuable fundamental right. However, the right is not absolute. Reasonable restrictions can be placed on the right of free speech and expression in the interest of sovereignty and integrity of India, security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of Court, defamation or incitement to an offence.

However, speech crime is punishable under Section 153 A IPC. Promotion of enmity between different groups on grounds of religion, race, place of birth, residence, language etc. and doing acts prejudicial to maintenance of harmony is punishable with imprisonment which may extend to three years or with fine or with both under Section 153 A.

“Only where the written or spoken words have the tendency of creating public disorder or disturbance of law and order or affecting public tranquility, the law needs to step in to prevent such an activity. The intention to cause disorder or incite people to violence is the sine qua non of the offence under Section 153 A IPC and the prosecution has to prove the existence of mens rea in order to succeed.”

The gist of the offence under Section 153 A IPC is the intention to promote feelings of enmity or hatred between different classes of people. The intention has to be judged primarily by the language of the piece of writing and the circumstances in which it was written and published. The matter complained of within the ambit of Section 153A must be read as a whole.

“One cannot rely on strongly worded and isolated passages for proving the charge nor indeed can one take a sentence here and a sentence there and connect them by a meticulous process of inferential reasoning.”

Did Patricia Mukhim’s post incite communal tension?

“India is a plural and multicultural society. The promise of liberty, enunciated in the Preamble, manifests itself in various provisions which outline each citizen’s rights; they include the right to free speech, to travel freely and settle (subject to such reasonable restrictions that may be validly enacted) throughout the length and breadth of India. At times, when in the legitimate exercise of such a right, individuals travel, settle down or carry on a vocation in a place where they find conditions conducive, there may be resentments, especially if such citizens prosper, leading to hostility or possibly violence. In such instances, if the victims voice their discontent, and speak out, especially if the state authorities turn a blind eye, or drag their feet, such voicing of discontent is really a cry for anguish, for justice denied – or delayed. This is exactly what appears to have happened in this case.”

After scrutinising the Facebook post, the Court noticed that the agony of the Appellant was directed against the apathy shown by the Chief Minister of Meghalaya, the Director General of Police and the Dorbar Shnong of the area in not taking any action against the culprits who attacked the non-tribals youngsters. The Appellant referred to the attacks on nontribals in 1979.

“At the most, the Facebook post can be understood to highlight the discrimination against nontribals in the State of Meghalaya.”

The Court noticed that the Facebook post read in its entirety pleads for equality of non-tribals in the State of Meghalaya.

“In our understanding, there was no intention on the part of the Appellant to promote class/community hatred. As there is no attempt made by the Appellant to incite people belonging to a community to indulge in any violence, the basic ingredients of the offence under Sections 153 A and 505 (1) (c) have not been made out.”

The attack upon six non-locals, carried out by masked individuals, is not denied by the State; its reporting too is not denied. The State in fact issued a press release. There appears to be no headway in the investigations.

“The complaint made by the Dorbar Shnong, Lawsohtun that the statement of the Appellant would incite communal tension and might instigate a communal conflict in the entire State is only a figment of imagination. The fervent plea made by the Appellant for protection of non-tribals living in the State of Meghalaya and for their equality cannot, by any stretch of imagination, be categorized as hate speech. It was a call for justice – for action according to law, which every citizen has a right to expect and articulate.”

The Court, hence, held that no case was made out against Mukhim for an offence under Section 153 A and 505 (1) (c) IPC.

[Patricia Mukhim v. State of Meghalaya, 2021 SCC OnLine SC 258, decided on 25.03.2021]

*Judgment by: Justice L. Nageswara Rao

Appearances before the Court by:

For Patricia Mukhim: Counsel Vrinda Grover

For State of Meghalaya: Counsel Avijit Mani Tripathi

Case BriefsSupreme Court

Supreme Court: The bench of AM Khanwilkar and Sanjiv Khanna, JJ has held that the true test of a valid FIR is only whether the information furnished provides reason to suspect the commission of an offence which the police officer concerned is empowered under Section 156(1) of the Criminal Code to investigate.

“The questions as to whether the report is true; whether it discloses full details regarding the manner of occurrence; whether the accused is named; or whether there is sufficient evidence to support the allegation are all matters which are alien to consideration of the question whether the report discloses commission of a cognisable offence.”

  1. FIR or the First Information Report, is neither defined in the Criminal Code nor is used therein, albeit it refers to the information relating to the commission of a cognisable offence. This information, if given orally to an officer in-charge of the police station, is mandated to be reduced in writing.
  2. The informant who lodges the report of the offence may not even know the name of the victim or the assailant or how the offence took place. Information to be recorded in writing need not be necessarily by an eye-witness, and hence, cannot be rejected merely because it is hearsay. Section 154 does not mandate nor is this requirement manifest from other provisions of the Criminal Code. Thus, at this stage, it is enough if the police officer on the information given suspects – though he may not be convinced or satisfied – that a cognisable offence has been committed.
  3. Section 154 of the Criminal Code, in unequivocal terms, mandates registration of FIR on receipt of all cognisable offences, subject to exceptions in which case a preliminary inquiry is required[1].
  4. There is a distinction between arrest of an accused person under Section 41 of the Criminal Code and registration of the FIR, which helps maintain delicate balance between interest of the society manifest in Section 154 of the Criminal Code, which directs registration of FIR in case of cognisable offences, and protection of individual liberty of those persons who have been named in the complaint.
  5. FIR is not an encyclopaedia disclosing all facts and details relating to the offence[2]. It is not meant to be a detailed document containing chronicle of all intricate and minute details. FIR is not even considered to be a substantive piece of evidence and can be only used to corroborate or contradict the informant’s evidence in the court[3].
  6. Even if information does not furnish all details, it is for the investigating officer to find out those details during the course of investigation and collect necessary evidence[4]. Thus, the information disclosing commission of a cognisable offence only sets in motion the investigating machinery with a view to collect necessary evidence, and thereafter, taking action in accordance with law.
  7. As per clauses (1) (b) and (2) of Section 157 of the Criminal Code, a police officer may foreclose an FIR before investigation if it appears to him that there is no sufficient ground to investigate. At the initial stage of the registration, the law mandates that the officer can start investigation when he has reason to suspect commission of offence.
  8. Requirements of Section 157 are higher than the requirements of Section 154 of the Criminal Code. Further, a police officer in a given case after investigation can file a final report under Section 173 of the Criminal Code seeking closure of the matter.

[Amish Devgan v. Union of India, 2020 SCC OnLine SC 994, decided on 07.12.2020]

[1] Lalita Kumari v. Government of Uttar Pradesh, (2014) 2 SCC 1

[2] Ibid

[3] Dharma Rama Bhagare v. State of Maharashtra, (1973) 1 SCC 537

[4] Superintendent of Police, CBI and Others v. Tapan Kumar Singh, (2003) 6 SCC 175

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of Ashok Bhushan, R. Subhash Reddy and MR Shah, JJ has issued notice to cartoonist Rachita Taneja and comedian Kunal Kamra in two separate cases relating contemptuous social media posts.

After obtaining Attorney General for India KK Venugopal’s consent a law student had filed a petition against Taneja for initiating proceedings for contempt for publishing contemptuous posts on her social media pages, Sanitary Panels, which allegedly scandalise and undermine the authority of the Supreme Court. The petitioner has filed this contempt petition.

Similarly, an advocate and 2 law students sought for initiation of criminal contempt proceedings against the Kamra for publishing contemptuous tweets on his twitter handle.

While giving consent in Kunal Kamra’s case, the Attorney General had noted,

“I find that today people believe that they can boldly and brazenly condemn the Supreme Court of India its judges by exercising what they believe is their freedom of speech. But under the Constitution, the freedom of speech is subject to the law of contempt and I believe that it is time that people understand that attacking the Supreme Court of India unjustifiedly and brazenly will attract punishment under the Contempt of Courts Act, 1972.”

The notices are returnable within six weeks and both the contemnors have been spared from appearing in person.

[Shrirang Katneshwarkar v. Kunal Kamra, 2020 SCC OnLine SC 1041, order dated 18.12.2020 and Aditya Kashyap v. Rachita Taneja, 2020 SCC OnLine SC 1042, order dated 18.12.2020]

Case BriefsSupreme Court

Supreme Court: The bench of AM Khanwilkar and Sanjiv Khanna, JJ refused to quash the FIRs registered against News18 Journalist Amish Devgan for using the term “Lootera Chisti” in one of his shows but has granted interim protection to him against arrest subject to his joining and cooperating in investigation till completion of the investigation.

While holding this, the bench made an attempt to define “hate speech” albeit it was of the opinion that a universal definition of ‘hate speech’ remains difficult, except for one commonality that ‘incitement to violence’ is punishable.

Here are 15 notable excerpts from the judgment that runs to 128 pages:

  1. Criminality would not include insults to religion offered unwittingly, carelessly or without deliberate or malicious intent to outrage the religious feelings. Only aggravated form of insult to religion when it is perpetuated with deliberate and malicious intent to outrage the religious feelings of that group is punishable. [1]
  2. Criticism and comments on government’s action in howsoever strong words would not attract penal action as they would fall within the fundamental right of freedom of speech and expression.[2]

  3. Dissent and criticism of the elected government’s policy, when puissant, deceptive or even false would be ethically wrong, but would not invite penal action. Elected representatives in power have the right to respond and dispel suspicion. The ‘market place of ideas’ and ‘pursuit of truth’ principle are fully applicable. Government should be left out from adjudicating what is true or false, good or bad, valid or invalid as these aspects should be left for open discussion in the public domain. (…) Political speech relating to government policies requires greater protection for preservation and promotion of democracy. Falsity of the accusation would not be sufficient to constitute criminal offence of ‘hate speech’.

  4. Security of the State, public order and law and order represent three concentric circles: law and order being the widest, within which is the next circle representing public order and the smallest circle represents the security of the State. The phrase ‘security of the State’ is nothing less than endangering the foundations of the State or threatening its overthrow. It includes events that have national significance or upheavals, such as revolution, civil strife, war, affecting security of the State but excludes breaches of purely local significance. The phrase ‘minor breaches’ refers to public inconvenience, annoyance or unrest. The phrase ‘in the interest of…public order’, in the context of clause (2) to Article 19, would mean breaches of purely local significance, embracing a variety of conduct destroying or menacing public order.[3]

  5. A speech by ‘a person of influence’ such as a top government or executive functionary, opposition leader, political or social leader of following, or a credible anchor on a T.V. show carries a far more credibility and impact than a statement made by a common person on the street. (…)The reasonable-man’s test would always take into consideration the maker. (…) This is not to say that persons of influence like journalists do not enjoy the same freedom of speech and expression as other citizens, as this would be grossly incorrect understanding of what has been stated above. This is not to dilute satisfaction of the three elements, albeit to accept importance of ‘who’ when we examine ‘harm or impact element’ and in a given case even ‘intent’ and/or ‘content element’.

  6. The terms ‘public order’ and ‘public tranquillity’ do overlap to some extent but are not always synonymous as ‘public tranquillity’ is a much wider expression and it’s breach may even include things that cannot be described as public disorder. (…) For breach of public order, it is not necessary that the act should endanger the security of the State, which is a far stricter test, but would not include every kind of disturbance of society. Accepting that ‘law and order’ represents the largest circle within which is the next circle representing ‘public order’ and inside that the smallest circle representing the ‘security of the State’ is situated, it was observed that State is at the centre and the society surrounds it. Disturbances of society can fall under broad spectrum ranging from disturbance of serenity of life to jeopardy of the State. Therefore, the journey travels first through public tranquillity then through public order and lastly to the security of the State.[4]

  7. Public order would embrace more of the community than law and order. Public order refers to the even tempo of the life of the community taking the country as a whole or even a specified locality.[5] (…) The test which is to be examined in each case is whether the act would lead to disturbance of the current life of the community so as to amount to disturbance of public order, or does it affect merely an individual leaving the tranquillity of the society undisturbed. The latter is not covered under and restriction must meet the test of ordre publique affecting the community in the locality.

  8. Dignity is a part of the individual rights that form the fundamental fulcrum of collective harmony and interest of a society. While right to speech and expression is absolutely sacrosanct in the sense that it is essential for individual growth and progress of democracy which recognises voice of dissent, tolerance for discordant notes and acceptance of different voices, albeit the right to equality under Article 14 and right to dignity as a part of Article 21 have their own significance.[6]

  9. Individual dignity can be achieved in a regime which recognises equality with other citizens regardless of one’s religious beliefs or the group to which one belongs. Religious beliefs and faiths ensure wider acceptance of human dignity and liberty, but when conflict arises between the two, the quest for human dignity, liberty and equality must prevail.[7]

  10. Dignity of individual and unity and integrity of the nation are linked, one in the form of rights of individuals and other in the form of individual’s obligation to others to ensure unity and integrity of the nation. The unity and integrity of the nation cannot be overlooked and slighted, as the acts that ‘promote’ or are ‘likely’ to ‘promote’ divisiveness, alienation and schematism do directly and indirectly impinge on the diversity and pluralism, and when they are with the objective and intent to cause public disorder or to demean dignity of the targeted groups, they have to be dealt with as per law. The purpose is not to curtail right to expression and speech, albeit not gloss over specific egregious threats to public disorder and in particular the unity and integrity of the nation.

  11. To ensure maximisation of free speech and not create ‘free speaker’s burden’, the assessment should be from the perspective of the top of the reasonable member of the public, excluding and disregarding sensitive, emotional and atypical. (…) This does not mean exclusion of particular circumstances as frequently different persons acting reasonably will respond in different ways in the context and circumstances. This means taking into account peculiarities of the situation and occasion and whether the group is likely to get offended. At the same time, a tolerant society is entitled to expect tolerance as they are bound to extend to others.

  12. Freedom and rights cannot extend to create public disorder or armour those who challenge integrity and unity of the country or promote and incite violence. Without acceptable public order, freedom to speak and express is challenged and would get restricted for the common masses and law-abiding citizens. This invariably leads to State response and, therefore, those who indulge in promotion and incitement of violence to challenge unity and integrity of the nation or public disorder tend to trample upon liberty and freedom of others.

  13. Communities with a history of deprivation, oppression, and persecution may sometimes speak in relation to their lived experiences, resulting in the words and tone being harsher and more critical than usual. Their historical experience often comes to be accepted by the society as the rule, resulting in their words losing the gravity that they otherwise deserve. (…) Such speech should be viewed not from the position of a person of privilege or a community without such a historical experience, but rather, the courts should be more circumspect when penalising such speech. This is recognition of the denial of dignity in the past, and the effort should be reconciliatory.

  14. Loss of dignity and selfworth of the targeted group members contributes to disharmony amongst groups, erodes tolerance and open-mindedness which are a must for multi-cultural society committed to the idea of equality. It is however necessary that at least two groups or communities must be involved; merely referring to feelings of one community or group without any reference to any other community or group does not attract the ‘hate speech’ definition.

  15. There are multiple justifications for ‘tolerance’, which include respect for autonomy; a general commitment to pacifism; concern for other virtues such as kindness and generosity; pedagogical concerns; a desire for reciprocity; and a sense of modesty about one’s ability to judge the beliefs and actions of others. However, tolerance cannot be equated with appeasement, permissiveness, or indifference. It is also not identical to neutrality. Toleration requires self-consciousness and self-control in a sense that it is a restraint of negative judgment that is free and deliberate. It implies no lack of commitment to one’s own belief but rather it condemns oppression or persecution of others.

[Amish Devgan v. Union of India, 2020 SCC OnLine SC 994, decided on 07.12.2020]

*Justice Sanjiv Khanna has penned this judgment 

[1] Ramji Lal Modi v. State of UP, AIR 1957 SC 620

[2] Kedar Nath Singh v. State of Bihar, AIR 1962 SC 955

[3] Superintendent, Central Prison, Fatehgarh v. Dr. Ram Manohar Lohia, AIR 1960 SC 633

[4] Madhu Limaye v. Sub-Divisional Magistrate, Monghyr, (1970) 3 SCC 746

[5] Shreya Singhal v. Union of India, (2015) 5 SCC 1

[6] Subramanian Swamy v. Union of India, (2016) 7 SCC 221

[7] India Young Lawyers Association v. State of Kerala, (2019) 11 SCC 1

Also read: SC refuses to quash FIRs for remarks on Sufi saint Khwaja Moinuddin Chisti but Amish Devgan not to be arrested pending investigation

Case BriefsForeign Courts

Supreme Court of The United States (SCOTUS): While deciding the instant petition for granting the writ of certiorari, wherein a question of constitutional importance vis-à-vis the theory of personal liability for violence during an activity protected by the First Amendment as adopted by the Court of Appeals for the Fifth Circuit, came before the Bench; it was held that since the claim and the issues at the heart of the dispute are not only exceptional but also novel, therefore the Fifth Circuit should not have ventured into an ‘uncertain area of Tort law, especially when it has implications for First Amendment Rights without seeking guidance from the Louisiana Supreme Court.

As per the facts, the petitioner DeRay Mckesson organized a demonstration in Baton Rouge, Louisiana, to protest against shooting by a local police officer. The protesters occupied the highway in front of the police headquar­ters. As officers began making arrests to clear the highway, an unidentified individual threw a ‘piece of concrete or a sim­ilar rock-like object’ thereby striking respondent Officer Doe in the face. As a result of the hit, the Officer suffered from severe injuries and brain trauma.  Even though the attacker remained unidentified, Officer Doe sought to recover damages from the petitioner on the theory that he negligently staged the protest in a manner that caused the assault. The District Court dismissed the theory as being barred by the First Amendment. However, the Fifth Circuit Court found that Mckesson breached his “duty not to negligently precipitate the crime of a third party” because “a violent confrontation with a po­lice officer was a foreseeable effect of negligently directing a protest” onto the highway. According to the Fifth Circuit, the First Amendment imposes no bar­rier to tort liability so long as the rock-throwing incident was “one of the ‘consequences’ of ‘tortious activity,’ which itself was ‘authorized, directed, or ratified’ by Mckesson in violation of his duty of care”.

Perusing the facts and the rationale applied by the Fifth Circuit, the SCOTUS Bench observed that when violence occurs during activ­ity protected by the First Amendment, that provision man­dates “precision of regulation” with respect to “the grounds that may give rise to damages liability” as well as “the per­sons who may be held accountable for those damages.”

Noting the petitioner’s contention that his role in leading the protest onto the highway, even if negligent and punishable as a misdemeanor, cannot make him personally liable for the violent act of an individual whose only associ­ation with him was attendance at the protest; the Bench observed that Fifth Circuit’s interpretation of state law is too uncertain a premise to address the ques­tion raised in the instant petition. The Court also noted that Louisiana Supreme Court Rules, La. Sup. Ct. Rule 12, §§1–2 (2019), provides an opportunity for the Federal Courts Appeals (on their own accord or on motion of a party) to seek guidance in the absence of clear controlling precedents in the decisions of the Louisiana Supreme Court. Though it is not obligatory for the Federal Courts of Appeals to do so, but in exceptional instances, certification is advisa­ble before addressing a constitutional issue.

Noting that the core dispute forming the basis of the instant petition is certainly an exceptional instance, therefore the Court of Appeals should have certified to the Louisiana Supreme Court the questions – (1) whether Mckesson could have breached a duty of care in organizing and leading the protest; and (2) whether Officer Doe has al­leged a particular risk within the scope of protection afforded by the duty, provided one exists. Furthermore, the Bench observed that the, “Conflict in this case between state law and the First Amendment is not purely hypothetical. The novelty of the claim at issue here only underscores that warnings against premature adjudication of constitutional questions bear heightened atten­tion when a federal court is asked to invalidate a State’s law”. The Court thus granted the writ of certiorari and remanded the case back to the Fifth Circuit for further proceedings which are to be conducted in consonance with the SCOTUS’ opinions.[DeRay Mckesson v. John Doe, No.19–1108, decided on 02-11-2020] ­

Sucheta Sarkar, Editorial Assistant has put this story together

Case BriefsHigh Courts

Delhi High Court: Sanjeev Sachdeva, J., while addressing the concern with regard to derogatory remarks being canvassed in the Netflix Web Series “Hasmukh” , bench stated that,

“…essence of democracy is that a creative artist is given the liberty to project the picture of the society in a manner he perceives.”

Plaintiff filed the suit for seeking permanent injunction against defendants further streaming of the episodes if Web Series (TV Show) “Hasmukh” particularly Episode 4 of Season 1.

The said episode has been alleged to have contained derogatory remarks against the entire legal fraternity.

The remarks are not humorous nor come across as a joke and are not even near to any satire nor within the boundaries of a critique.

Following is the dialogue against which the subject suit was filed:

“Aisa pehla shehar dekha hai humne jahan chor bhi bade ameer hote hain. Lekin yahan unka naam chor nahin ‘vakeel’ hota hai. Aapke Vakeel sabse bade kamine aur chor hote hain. Ye kanoon ke thekedaar jo kabhi nahin honge giraftaar, kyunki ye kalam ke saath karte hain balatkaar. Are bhaiya, log kehte hain ki kanoon andha hota hai, main kehta hoon kanoon ganda hota hai, kyunki har vakeel ke haath mein chota sa itna danda hota hai.”

The said dialogue is highly disparaging, defamatory and it brings disrepute to the legal profession and lawyers.

Senior Counsels appearing on behalf of the defendants submitted that Lawyers cannot be defamed as a “class of persons”, nor can the Plaintiff be defamed by a general reference to Lawyers.

It is contended that where there is a statement describing a very wide class of individuals such as the reference made to lawyers, without identifying individual members, it cannot be said that lawyers have been defamed as a class or that individual members such as the Plaintiff have been defamed for belonging to the class of lawyer.

“Satire is a work of art. It is a literary work that ridicules its subject through the use of techniques like as exaggeration.”

Bench noted that the protagonist makes the impugned comment after facing a personal experience with a dishonest greedy lawyer.

Having experienced an immoral character, the protagonist thereafter, while performing on the stage as a stand-up comedian makes a satirical comment about the lawyers in general.

Further the Court also observed that,

“Web-series when viewed shows that it is a dark satirical comedy, attempting to expose the ills of various professions.”

People do not view the comments or jokes made by stand-up comedians as statements of truth but take them with a pinch of salt with the understanding that it is an exaggeration for the purposes of exposing certain ills or shortcomings.

Thus, in Court opinion granting an ad interim injunction would amount in to interference in the freedom of speech and expression guaranteed by the Constitution of India.

In the humorous portrayal of the ills of the society the stand-up comedians use satire.

As noticed above, neither has the plaintiff pleaded not shown that the impugned dialogue in any manner refers to the plaintiff or refers to a definite group of individuals or lawyers out of the entire class of lawyers to which the plaintiff belongs.

Hence plaintiff has not been able to show that there exists a prima facie case in favour of plaintiff. [Ashutosh Dubey v. Netflix, Inc., I.A. 3754 of 2020 in CS (OS) 120 of 2020, decided on 05-05-2020]

Case BriefsSupreme Court

Supreme Court: The bench of Dr. DY Chandrachud and Hemant Gupta, JJ issued a Mandamus restraining the state of West Bengal from taking recourse to any form of extra constitutional means to prevent the lawful screening of the feature film Bhobishyoter Bhoot that was made to support meaningful Bengali cinema.

Factual Background

  • Bhobishyoter Bhoot, a social and political satire about ghosts who wish to make themselves relevant in the future by rescuing the marginalized and the obsolete, has a UA certification for public exhibition, issued by the Central Board of Film Certification1 on 19 November 2018. Prior to its national launch, the film was slated for release in Kolkata and some districts of West Bengal on 15 February 2019.
  • Petitioner received a letter from the State Intelligence Unit calling upon him to arrange a prior screening of the film for senior officials of the intelligence unit of Kolkata police by 12 February 2019.
  • The letter stated that inputs were received “that the contents of the film may hurt public sentiments which may lead to political law and order issues”.
  • The petitioner categorically informed the Joint Commissioner of Police (Intelligence), Special Branch, Kolkata that his office does not have the jurisdiction to seek ‘advance’ private screening prior to the release for a “few senior officials” on a “priority basis” as sought. No further communication was received from the Kolkata police.
  • Petitioner proceeded with the release of the film on 15 February 2019. Within a day of its release in Kolkata and a few districts of West Bengal an overwhelming majority of the exhibitors abruptly took the film off their screens on 16 February 2019 without a communication from the producers.
  • The petitioners had argued that the State of West Bengal is misusing police power and acting as a ‘super-censor’ sitting atop the CBFC and is violating the Petitioners’ fundamental rights guaranteed under Articles 14,19(1)(a), 19(1)(g) and 21 of the Indian Constitution through the Kolkata Police which is under the Department of Home.

Overreach of powers by West Bengal Police

Noticing that the statutory authority to certify a film for public exhibition is vested in the CBFC under the provisions of the Cinematograph Act 1952, the bench said,

“The police are not in a free society the self-appointed guardians of public morality. The uniformed authority of their force is subject to the rule of law. They cannot arrogate to themselves the authority to be willing allies in the suppression of dissent and obstruction of speech and expression.”

The Court also noticed that the Joint Commissioner was not unmindful of the fact that the film had been slated for release within a few days of his communication in theatres across the city of Kolkata and the State. If there was any doubt whatever over the entitlement of the producers to have the film exhibited, it was laid to rest when the producers immediately informed him of the film being CBFC certified. Hence, the Court said,

“Such attempts are insidious and pose a grave danger to personal liberty and to free speech and expression. They are insidious because they are not backed by the authority of law. They pose grave dangers to free speech because the citizen is left in the lurch without being informed of the causes or the basis of the action. This has the immediate effect of silencing speech and the expression of opinion.”

Holding that the West Bengal police have overreached their statutory powers and have become instruments in a concerted attempt to silence speech, suborn views critical of prevailing cultures and threaten law abiding citizens into submission, the Court concluded,

“In the present case, we are of the view that there has been an unconstitutional attempt to invade the fundamental rights of the producers, the actors and the audience. Worse still, by making an example out of them, there has been an attempt to silence criticism and critique. Others who embark upon a similar venture would be subject to the chilling effect of ‘similar misadventures’. This cannot be countenanced in a free society. Freedom is not a supplicant to power.”

Direction

State of West Bengal has been directed to pay to the petitioners Rs. 20 lakhs compensation and Rs. 1 lakh towards cost of proceedings within a period of one month.

[Indibility Creative Pvt Ltd. v. Govt. of West Bengal, 2019 SCC OnLine SC 520, decided on 11.04.2019]

Case BriefsSupreme Court

Supreme Court: A Bench comprising of CJ Dipak Misra and A.M. Khanwilkar and Dr D.Y. Chandrachud, JJ., laid down some recommendations in addition to the ones in Destruction of Public and Private Properties, In re, (2009) 5 SCC 212, concerning the issue of  “mob violence, protests and demonstrations” erupted in the recent past, especially against cultural programmes and establishments and the ensuing damages to public and private properties due to violence.

The petitioners concern as submitted and placed in the present matter was in regard to violence being the crux and primary issue. The petitioner submitted that law and order problems were arising out of the release of several films, especially the violence surrounding the release of the film “Padmaavat” as the fundamentalist outfits and fringe groups issued threats and engaged in acts of violence against people and property to disrupt and prevent public exhibitions of such films on the pretext that they “offend their cultural/religious sentiments.” Films which were protested against were certified for public exhibition in accordance with law under the Cinematograph Act. Attacks on films by such groups were imposed by unlawful restraints and further impinge on the freedom of speech and expression under Article 19(1)(a) of the Constitution of India.  The consequence to all the stated circumstances above was the respondent State government’s action of banning the exhibition of such films citing law and order problems, without clamping down on the root cause. Petitioners articulated some suggestions to curb the occurrence of such events.

Therefore, Court on noting the submissions of the petitioner’s concluded its decision by stating that the primary relief is to issue directions to the State/Union of India to strictly implement the decision rendered by the Supreme Court in Destruction of Public and Private Properties, In re, (2009) 5 SCC 212 concerning the large-scale destruction of properties in the name of agitations, bandhs, hartals, etc. Further, it was noted that Attorney General for India, K.K. Venugopal, had also given certain suggestions to increase accountability and timelines for law-enforcement bodies in relations to acts of mob-violence.

The Supreme Court stated that such acts of violence as stated above highlight a deeper malaise, one of intolerance towards others’ views which then results in attempts to suppress alternate view-points, artistic integrity and the freedom of speech and expression guaranteed by the Constitution of India.

“Nobody has the right to become a self-appointed guardian of law and forcibly administer his or her own interpretation of the law on others, especially not with violent means.”

In regard to the measures to be introduced, the suggestions made by the AG could be implemented as interim measures. Further, the Court said that the crimes committed by groups of self-appointed keepers of public morality may be on account of different reasons or causes, but the underlying purpose of such group of persons is to exercise unlawful power of authority. Therefore, a comprehensive structure has to be evolved to deal with the issues of accountability and efficiency in curbing incidents of peaceful protests turning into mob-violence.

Hence, the Court without hesitation observed that the dispensation can be similar in the present matter as the one decided in Tehseen Poonawalla v. Union of India, 2018 SCC OnLine SC 1666. Further, the recommendations in addition to Destruction of Public and Private Properties, In re, (2009) 5 SCC 212 were under the following heads:

  • Structural and preventive measures
  • Remedies to minimize, if not extirpate, the impending mob violence
  • Liability of person causing violence
  • Responsibility of police officials
  • Compensation

The writ petition was dismissed by giving the directive of implementation of the recommendations by the Central and State governments preferably within a period of 8 weeks. [Kodungallur Film Society v. Union of India,2018 SCC OnLine SC 1719, decided on 01-10-2018]

Case BriefsSupreme Court

“Everything you can imagine is real”

                                -Pablo Picasso

“A writer or an author, while choosing a mode of expression, be it a novel or a novella, an epic or an anthology of poems, a play or a playlet, a short story or a long one, an essay or a statement of description or, for that matter, some other form, has the right to exercise his liberty to the fullest unless it falls foul to any prescribed law that is constitutionally valid.”

-Dipak Misra, C.J

Supreme Court: The Bench comprising of CJ Dipak Misra and A.M. Khanwilkar and Dr D.Y. Chandrachud, JJ. dealt with the issue of creativity and its impact while considering a writ petition filed under Article 32 of the Constitution of India seeking to ban a novel on the foundation that a part of it is indecent and offends the sentiments of temple going women. The petition was dismissed by the Court observing that nurturing the contention behind it would be to pyramiding a superstructure without the infrastructure.

The petition sought to ban the novel Meesha, parts of which were published in the popular Malayalam weekly Mathrubhumi. It was averred that the said literary work was insulting and derogatory to temple going women and it hurts the sentiments of a particular community. It was submitted that the writings published in Mathrubhumi had a tendency to propel the general public to view women community as mere sexual objects, which in turn denies the women their fundamental rights and also jeopardize their safety and well-being. Further, the publication had proclivity to disturb public order, decency and morality and it defames the women community, all of which entitles the State to put reasonable restrictions under Article 19(2).

Here it is pertinent to refer and quote the relevant dialogue from the novel that impelled the petitioner to move the Court:

“Why do these girls take bath and put on their best when they go to the temple?” ,

a friend…once asked.

“To pray”, I said

“No”, he said.”…why do they need to put their best clothes in the most beautiful way to pray? They are unconsciously proclaiming that they are ready to enter into sex. …Otherwise… why do they not come to the temple four or five days a month? They are letting people know that they are not ready for it. …”

The Supreme Court, for deciding the present petition, perused the entire central theme of Meesha. The primary issue for consideration was whether the novel was an aberration of such magnitude which invited imposition of reasonable restrictions under Article 19(2)? In view of the Court, the answer to the consideration was categorically in negative. The Court, speaking through CJ Dipak Misra, made various observations, few of which are delineated hereinafter:

  • Literature symbolizes freedom to express oneself in multitudinous ways.
  • The free flow of stream creativity knows no bounds and imagination brooks no limits.
  • It is perilous to obstruct free speech, expression, creativity and imagination, for it leads to a state of intellectual repression of literary freedom thereby blocking free thought and fertile faculties of human mind.
  • Ideas have wings. If the wings are clipped, no work of art can be created.
  • Constitutional ideals can be preserved by defending the freedom of think as you will and speak as you think-Justice Louis Brandeis.
  • A reader should have the sensibility to understand the situation and appreciate the character. The feeling of perverse judging should be abandoned.
  • A creative writing is expectant of empathetic reading. It is not averse to criticism but certainly does not tolerate unwarranted protest.

In the course of adjudication, the Court referred to various earlier decisions including, inter alia, Bobby Art International v. Om Pal Singh Hoon, (1996) 4 SCC 1, Raj Kapoor v. State, (1980) 1 SCC 43 and Samaresh Bose v. Amal Mitra, (1985) 4 SCC 289. The Court reminded itself of the expression used by George Orwell, creative writing is contrary to intellectual cowardice and intellectual pusillanimity. The Court was of the view that the character Meesha as is projected in the novel, shows myriad experiences with different situations. Viewed from, either way, it could not be denied that the character is the manifestation of creativity. Language used in the dialogue cannot remotely be thought of as obscene. The dialogue to which objection was raised is not an intrusion to create a sensation. If the books are banned on such allegations, there will be no creativity. Such interference by the Constitutional Courts will cause the death of art. In light of all that is mentioned above, the Court dismissed the petition holding it to be sans merit.

It becomes essential to refer to the closing remarks of the Bench in its judgment:

…what the great writer and thinker Voltaire had said- I may disapprove of what you say, but I will defend to the death your right to say it; becomes the laser beam for guidance when one talks about freedom of expression. [N. Radhakrishnan v. Union of India, (2018) 9 SCC 725, decided on 05-09-2018]

Hot Off The PressNews

Supreme Court: The 3-judge Bench of Dipak Misra, CJ and AM Khanwilkar and Dr. DY Chandrachud, JJ came to the rescue of actress Priya Prakash Varrier, who shot into limelight after her ‘wink’ video went viral, by staying criminal proceedings against her in some states on the grounds that a song from her Malayalam film “Oru Adaar Love” allegedly hurt religious sentiments of the Muslim community. The Bench also granted similar relief to the director of the movie .

Besides staying the existing criminal proceedings, the bench also restrained all state governments from registering any further FIRs against the actress and the director with regard to the promotional video.

The 18-year-old Priya Prakash Varrier had sought protection from an FIR lodged on complaints alleging that the lyrics of the song ‘Manikya Malaraya Poovi’ from the movie was “offensive” and had “violated the religious sentiment of a particular community.

The plea said the claims that it hurt religious sentiments of the Muslim community are

“without any basis and what is hard to fathom is that a song which has been in existence for the past 40 years, which was written, sung and cherished by the Muslim community in Kerala is now being treated as an insult to the Prophet and his wife…. It is submitted that a song, which …. has been cherished by more than one crore Muslim population of Kerala, cannot suddenly offend the religious sentiments of the Muslim community”

Source: PTI

Op EdsOP. ED.

Introduction

In India, the right to freedom of speech and expression is endowed under Article 19(1)(a) of the Constitution. Free speech allows the conveyance of an individual’s ideas and opinions. Its expression is instrumental in permitting individuals their aspiration of achieving a sensation of self-fulfilment. A liberal democracy is characterised by governance by the self (in India through a choice-based representation) and affording the individual to market its modulating opinion across all hues. In such a society, a conflict between the State and the individual’s opinion is bound to exist. Punishing or curtailing an individual for depreciating the authority of the judicial system or State contradicts the abstract theory of the promotion of a right to free speech and expression.

Jurisprudence on free speech and constitutional morality

According to Bhatia[1], two trajectories pertaining to Indian free speech exist. Firstly, the “moral paternalistic” approach and secondly, the “liberal autonomous approach”. The former does not endow individual’s abundant freedom since it views individuals as corruptible and intrinsically ferocious with a tendency to engage in violence. The latter approach is relatively more tolerant and permissive viewing individuals as entities competent to decide for oneself, this approach respects an individual’s intellectual capabilities has relatively fewer restrictions imposed on them. Bhatia further constructs on Kant’s ideology elucidating on the equality of individuals. Relying on the premise that all individuals are equivalent, every individual’s ability to communicate and express oneself should be of equal. Subsequently, no fringe nor political nor majoritarian group should be in a position to asphyxiate the expression of another. He further relies on the Athenian philosophy that drew an inverse nexus between free speech and slavery.[2]

Dworkin[3], similarly provided two justifications as the underlying basis for the arguments advocating free speech. Firstly, permitting individuals to converse and express themselves freely allows the promotion of good policies and serves as a check on relatively poor ones, for this approach an inherent comprehension of the concept of free speech is required. Secondly, a broader justification is the equal endowment of autonomy to individuals and the corresponding appreciation and respect for their right to speak freely.

Bhatia[4] further stipulates the “constitutionalising” of all dimensions of free speech. He promotes the extension of protection of free speech and in the scenario where such protection is unfeasible and impracticable, it should be restrained solely by the Constitution based on certain values and principles of the Constitution as opposed to the prevalent social convictions of the qualifications of morality and decency which have a tendency to be ambiguous and non-uniform.

Constitutionality of Section 124-A[5] IPC

The Supreme Court had constitutionalised and limited the scope of sedition in Kedar Nath Singh v. State of Bihar[6] by restricting it to instances where individuals through their speech and expression disrupt the law or provoke and incite violence. However, in practice and past trend showcases that despite the existence of this stipulation, sedition charges are levied on individuals for mere criticism of the Government in the public arena, mere expressions of detest and abhorrence for State policies, religion and showcasing contempt against what is morally acceptable in our society.

Thus, prevailing present day practices are not in accordance with the judicial intention at the time of articulation of the Kedar Nath judgment[7]. Based on this premise and the following grounds, certain reasons provide why sedition laws should be repealed from the Indian nation State.

Firstly, the overbreadth test should be applied to a provision to gauge its constitutionality. If a provision is excessively ambiguous, very subjective pertaining its applicability and its breadth very expansive, this could lead to obscurity in its practice and its overbreadth could serve to its detriment. Applying this test to Section 124 of the Penal Code, the exact interpretation of the word “disaffection” is uncertain and indeterminable. Despite, the elaboration of the terminology in the explanation to the section to be inclusive of disloyalty and feelings of enmity, the skyline of this provision is nebulous. Article 19(1)(a) endows individuals the fundamental right to freedom and expression which is reasonably restricted by Article 19(2) in the interest of public order when pertaining to sedition. However, in India, recent trend showcases the application of sedition under the IPC being charged on individuals on grounds barring the instances limited to interest of public order. Given the haziness in the practical applicability of this provision, it should be rendered unconstitutional.

Secondly, this test is further extended to the vagueness test, whereby an individual should be aware of articulation of the provision, what it seeks to condone and the consequences attached. Given the obscurity attached with the provision, an individual may be dubious to the horizons of the provision which would lead to a negative externality such as the chilling effect.

Thirdly, Section 124-A IPC cements a certain chilling effect on the generic public. This section identifies sedition as a criminal offence and attaches with the provision excessive damages and penalties for instances of sedition. In India, however, sedition charges in practice are not limited to solely instances “in the interest of public order” but also extend to occurrences of defamation, deviations from the accepted standards of morality and decency, etc. In the backdrop of substantial punishments, the provision serves as a disincentive on the freedom of speech endowed to citizens under Article 19(1)(a) of the Constitution.

Fourthly, despite limiting the scope in the 1962 provision, the Court did not establish a reasonable nexus[8] between a speech and its role as an instrument to the causation of public disorder. Although, in recent years the courts have initiated the identification of occurrences whereby this nexus exists, there is no absolute provision in existence. In the absence of such a provision with the restriction imposed in Article 19 of the Constitution, the chilling effect may supersede in society, which is in a direct contradiction of the articulation of the freedom endowed under Article 19(1)(a).

In Shreya Singhal v. Union of India[9], the Court laid that regardless of the degree of derogation and insult, a certain degree of proximity needed to exist between the utterance and the potentiality of public disorder. This is progressive step in the direction of laws pertaining to sedition as it further limits the scope of sedition. The Court in the case positioned the requirement for a substantive and a procedural analysis of the restrictive law concerned to determine its reasonability.

Thus, whilst applying the fundamentals of this case to Section 124-A IPC, a substantive analysis would showcase the provision to be excessively broad in the interpretation of “disaffection”, thereby fulfilling the overbreadth and vagueness test. The procedural analysis of the punishment would prove it be a draconian provision. Given the obscurity concerning the actual materialisation of disorder and violence, life imprisonment as a punishment for the mere potentiality of inciting violence through speech seems to be superabundant, thereby fulfilling the chilling effect. Thus, the restriction on free speech and its recognition as an offence under Section 124-A IPC does not seem reasonable.

Schenck v. United States[10], elucidated the required proximity between the utterance of speech and incitement of violence. It lays the possibility of danger or the intent to bring it about must be imminent or immediate. This case established the “bad tendency test”.[11] Brandenburg v. Ohio[12], laid the “clear and present” danger test, whereby the State was prohibited by the US Constitution from repressing speech and its advocacy barring the possibility of it causing an immediate harm to law by an illicit act or if it aimed at causing such an action. In the US under the 1st amendment, further speech is promoted as opposed to necessitating silence to remedy bad or injurious speech. Thus, in the US even though some sedition laws have been retained, the courts are dispensing extensive protection to the right of free speech.

In India, such a linear demarcation does not exist and in the scenario where the implementation of such tests are attempted, reasonable restrictions serve as a hindrance. Even though such tests was applied in Arup Bhuyan v. State of Assam[13], the Supreme Court has rejected such tests in other cases resulting in no fixed applicability.

India’s sedition law is derivative from the colonial era. In 2009, the Britain abolished its sedition laws to endorse the freedom of speech and expression. This abolition was on the premise that such laws were in contradiction to Britain’s human rights commitments and were also responsible in inducing a chilling effect on the right to freedom of speech and expression.

In 2007, New Zealand abolished its sedition law based on the Crimes (Repeal of Seditious Offences) Amendment Act, 2007[14]. It has addressed comparable offences under other conventional criminal provision.[15]

Conclusion

Thus, articulation of Section 124 of the Penal Code appears to subdue and extinguish any forms of dissent present in society. Such a tendency contradicts the inherent ingredients which characterise a democracy. The existence of such provision in a State aiming to progress appears obsolete. The punishment associated with it render the provision draconian. The continuance of such a provision induces a chilling effect on the freedom of speech and expression, which is a supposed fundamental right provided under Article 19(1)(a) of the Constitution. There is a need for India to progress and alter its sedition laws in accordance with the transitions in society. Further, given sedition covers a broad ambit of actions, each act should be governed by its individual provisions, rather than one generic offence with such a stringent punishment.

 

 *  2nd year student of LLB, Jindal Global Law School, Sonipat.

[1]  Bhatia, Gautam, 2016, Offend, Shock, or Disturb: Free Speech under the Indian Constitution. 1st Edn., Oxford University Press, USA.

[2] Mehta, Avantika, 2016, Offend, Shock, or Disturb: The limitations to free speech in India. Hindustan Times,<http://www.hindustantimes.com/art-and-culture/a-new-book-looks-at-limitations-to-free-speech-in-india/story-mF9tcylLiAxpiS255zL16H.html>.

[3]  Venkataramanan, K., 2016, How free can free speech be?, The Hindu, <http://www.thehindu.com/opinion/op-ed/how-free-can-free-speech-be/article8289947.ece>.

[4]  Venkataramanan, K., 2016, How free can free speech be?, The Hindu, <http://www.thehindu.com/opinion/op-ed/how-free-can-free-speech-be/article8289947.ece>.

[5]  124-A. Sedition.—Whoever by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, [***] the Government estab­lished by law in [India], [***] shall be punished with [im­prisonment for life], to which fine may be added, or with impris­onment which may extend to three years, to which fine may be added, or with fine.

        Explanation 1.—The expression “disaffection” includes disloyalty and all feelings of enmity.

        Explanation 2.—Comments expressing disapprobation of the meas­ures of the Government with a view to obtain their alteration by lawful means, without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.

        Explanation 3.—Comments expressing disapprobation of the admin­istrative or other action of the Government without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.

[6] 1962 Supp (2) SCR 769 : AIR 1962 SC 955.

[7]  1962 Supp (2) SCR 769 : AIR 1962 SC 955.

[8]  Parthasarathy, Suhrith, 2016, Sedition and the Government, The Hindu, <http://www.thehindu.com/opinion/lead/Sedition-and-the-government/article14082471.ece>.

[9]  (2015) 5 SCC 1.

[10]  1919 SCC OnLine US SC 62 : 63 L Ed 470 : 249 US 47 (1919).

[11]  Liang, Lawrence, 2016, Interview: Sedition and the Right to Freedom of Expression. The Wire, <https://thewire.in/42412/interview-sedition-and-the-right-to-freedom-of-expression>.

[12]  1969 SCC OnLine US SC 144 : 23 L Ed 2d 430 : 395 US 444 (1969).

[13]  (2015) 12 SCC 702.

[14]  Crimes (Repeal of Seditious Offences) Amendment Act, 2007, <http://www.legislation.govt.nz/act/public/2007/0096/latest/whole.html>.

[15]  Dutta, Damayanti, 2016, The Sedition joke: Going from bad to worse, Indiatoday.intoday.in. <http://indiatoday.intoday.in/story/sedition-law-india-government-offence/1/759345.html>.

Case BriefsHigh Courts

Madras High Court: The petitioner, an organization involved in social activities for the benefit of general public intending to organize a public meeting to address the issue of corruption in Tamil Nadu, had submitted a request to the Inspector of Police, Mylapore, seeking permission to organize a public meeting in Mylapore on 08.10.2017. On 30.09.2017, the Inspector of Polioce, Mylapore issued a show-cause notice as to why permission could not be granted for conducting the said meeting. When the petitioners challenged the notice owing to their right to freedom of speech and expression and to assemble peacefully, the same was negated. As a result, the petitioners sought for a writ of declaration, declaring that the failure of the respondents to grant permission to conduct the public meeting as illegal and arbitrary.

The Assistant Commissioner of Police, Mylapore rejected the petitioner’s request for permission to conduct such a meeting on the ground that the respondent police had reliable information that the petitioner was trying to instigate people for creating law and order problem under the guise of organizing a meeting. The said rejection order also remarked that by taking advantage of the situation, anti-social elements may also infiltrate into the public and indulge in anti-social activities, creating ruckus.

Justice M.S. Ramesh, stating explicitly that the respondent being the authority to ensure that no untoward incident happen during the course of meeting, is also empowered to regulate the conduct of the meeting, observed: “I do not endorse the reasoning of the respondents for rejecting the petitioner’s request for the simple reason that the police department has been created only for the purpose of tackling the above problems. Since it is the fundamental right of the petitioner to conduct such a meeting, if at all, the respondent is of the view that they intend to instigate people and thereby create law and order problem, it was always open to them to permit the petitioner to conduct the meeting by imposing conditions.”

Granting liberty to the petitioner to approach the Deputy Commissioner of Police, Mylapore, Chennai, seeking for permission to conduct the public meeting, the Court issued directions to the Deputy Commissioner of Police to accord necessary permission to the petitioner for conducting the meeting on the date requested by the petitioner by imposing reasonable restrictions. [Arappor Iyakkam v. State of Tamil Nadu,  2017 SCC OnLine Mad 5785, decided on 5.10.2017]

Case BriefsSupreme Court

Supreme Court: In the matter where the Indian Broadcasting Foundation had appealed against the order of the Bombay High Court which upheld the constitutionality of the amendment to the  Maharashtra Stamp Act which levied stamp duty on the execution of the document pertaining to advertisement, the bench of Dipak Misra and A.M. Khanwilkar stayed of the operation of the judgment of the High Court and said that the matter requires to be debated, especially keeping in view the sacrosanctity of the freedom of speech and expression and the involvement of electronic and print media.

The Foundation had argued that the State Legislature cannot impose tax on anything shown on electronic and print media, that is to say, on the television, radio and newspaper. It was also contended that the expression “through an electronic and print media” has to be given appropriate and adequate emphasis so that the freedom of speech and expression is sustained in a democratic body polity and no attempt should be made to scuttle their progress and smother their effective sustenance. Also, that if a huge revenue is taken away from the members of the Broadcasting Foundation, who are embedded to the cause of freedom of speech and expression that percolates the ethos pertaining to individual and collective expression, inevitably hamper the freedom of speech and expression.

The State, on the other hand, contended that the subject of levy of stamp duty comes within Lists II and III of the Constitution and the State Legislature has the authority to legislate and, therefore, the judgment rendered by the High Court is absolutely flawless. A State Legislature can legislate touching the aspects of stamp duty for the purpose of revenue generation and it cannot be called a colorable exercise of power. It was also contended that duty is to be paid by the advertising agency or persons and, thereby, neither the electronic media nor the print media is affected.

Directing the members of the Foundation to give a summary of the revenue earned through the advertisement, the Court listed the matter to be heard on 13.09.2017. [Indian Broadcasting Foundation v. State of Maharashtra, 2017 SCC OnLine SC 280, order dated 27.03.2017]

Case BriefsForeign Courts

Kenya High Court at Nairobi: The High Court has struck down the provisions of Criminal Defamation in its Penal Code. The Court observed that such a provision as a threat to Freedom of Speech and Expression saying that this right in a spirited democracy is a highly treasured value and it is a prized asset to the individuality and overall progress of a thinking society for it allows arguments and dissent.

The Judge noticed that the consequences of criminal defamation could be quite harmful and undesirable like possibilities of arrest, detention and two years imprisonment as provided by the Penal Code were quite unjustifiable in a democratic society. The judge said that the present law was a disproportionate instrument to combat the mischief of defamation and emphasised upon adopting an alternate and proportionate civil remedy.

There are certain reasonable restrictions to freedom of speech and expression under Article 24 of the Constitution of Kenya. While discussing the restrictions that can be put on freedom of speech, the Court relied on Ahmedabad Pvt. Primary Teachers’ Assn. v. Administrative Officer, (1988) 4 SCC 42 wherein it was observed that the maxim noscitur a sociis is a legitimate rule of construction to construe the words in an Act of  Parliament with reference and in the same context held that the limitations in Article 24 ought to be read together and the limitations should not be construed as limiting the right or fundamental freedom unless the provision is clear and specific about the right or freedom to be limited.

Counsel for the respondent submitted that the section in question is constitutional in a democratic society to prevent individuals with ill motives from interfering with the rights of other persons and prayed for the petition to be dismissed. Counsel for the first respondent adopted the submissions of the second respondent.

The Court also relied on the African Court on Human and Peoples Rights decision in Konate v. Burkina Faso, 2015 SCC OnLine Ken 2823 where it was held that criminal defamation laws should only be used as a last resort when there is a serious threat to the enjoyment of other human rights in exceptional circumstances such as hate speech and incitement. It observed that criminal defamation was overly broad in its scope and its application has turned it into a powerful mechanism to stifle investigative journalism and silence criticism.

The Court studied the scope of restrictions in Article 24 on the right conferred by Article 33 (Freedom of Speech and Expression) and came to the conclusion that the restrictions in the former are to safeguard the interests of the State and not an individual and therefore, Article 24 couldn’t be termed as the source of validating the impugned section.

The Court further explained the difference between civil and criminal law and quoted reasons as to why defamation was a civil wrong or a tort and not a criminal act. It elucidated that Civil law exists to provide relief and restitution when one person harms or threatens to harm another’s private interest while Criminal law exists to ensure retribution and protection of public by detaining offenders and deterring others from offending. For something like damaging speech, the civil law would be effective as well as proportionate enough in bringing the person harmed to justice, the High Court at Kenya observed. [Jacqueline Okuta v. Attorney General, 2017 SCC OnLine Ken 1, decided on 6-2-2017]