Case BriefsDistrict Court

Court of Judicial Magistrate, Patuadi, Gurugram: Mohd. Sageer, Judicial Magistrate 1st Class, while addressing the present matter, remarked that:

“Freedom of speech has to be an integral part of any democratic country as in ours. However, this freedom has its own limitations and reasonable restrictions.”

“Every citizen has a right to express his thoughts but not in a manner to target a particular community and promoting enmity.”

Applicant’s counsel submitted that the applicant was innocent, and the case was false and concocted.

Counsel for the accused submitted that his client was made scapegoat. Adding to his submissions, counsel stated that the Mahapanchayat was not organized by his client and eve before his client/accused spoke, there were several other orators who used offensive languages and hate speech but only his client was made accused and was further arrested as he was an outsider with no political connections.

Further, the counsel contended that there were other orators who were powerful persons who gave inflammatory speeches but no action against them was being taken. Adding to this submission, Counsel mentioned about bias attitude of Haryana Police since the police gave only a video clip whereas he had the whole recording in his mobile and submitted that he will give the same before the court to prove the biasness towards accused.

Lastly, counsel argued that due to the early inflammatory speeches of other persons and charged atmosphere, the accused got carried away and that keeping in view the young age and innocent mind, he be released on bail.

Analysis, Law and Decision

Liberty of a citizen is undoubtedly important, but this is to be balanced with the security of the community as held in the Supreme Court decision of Col. Prasad Shrikant Purohit v. State of Maharashtra, (2018) 11 SCC 458.

Bench stated that the Court granting bail should exercise its discretion in a judicious manner and not as a matter of course.

The necessary factors before granting bail:

(a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence.

(b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant.

(c) Prima-facie satisfaction of the court in support of the charge.

In Supreme Court’s decision of Siddharam Satingappa Mhetre v. State of Maharashtra, (2011) 1 SCC 694, it was held that,

Just as the Liberty is precious to an individual, so is society’s interest in the maintenance of peace, law and order. Both are equally important. While elaborating the value of one’s liberty, it was also held that at the same time “liberty” without restraints would mean liberty won by one and lost by another. So “liberty” means doing anything one desires but subject to the desire of others.

In the present matter, a Video Recording presented by the IO of the case was seen in the open Court, in which the IO indicated and located the accused person. Bench noted the accused’s counsel himself admitted that person who was giving an inflammatory speech in the Video recording at the time of occurrence was the present accused.

Hence, in view of the above-stated, it was clear that the defence tried to mislead the Court.

Court expressed that it was clear on perusal of the FIR and the video recording available that a gathering was present where the accused gave hate speeches and used inflammatory language, raised slogans in the name of religion to kill persons of particular religious community.

In High Court’s opinion, the prima facie reliability of the video clip produced before the court cannot be questioned.

Conscience of the Court is utterly shocked while seeing the actual incidents which took place at that time, in video recording. It seems that now a normal parent would tell stories to their children that there used to be a time when talks of hatred or the religious intolerance in our society used to be seen as a sign of diminishing social values.

Bench added that the video produced had raised a very vital question – Do our society need to tackle the in discriminative force of pandemic of COVID-19 first or these kind of persons, who are filled with so hatred that if given chance they would organize a mass murderer mob to kill innocents lives based on their own religious hatred.

Further, the Court stated that as per the information of IO and admitted by the counsels of the accused this is the same person who this nation had witnessed brandishing illegal weapons and opening fire towards the students of the one Central University of Delhi.

An FIR was registered against the accused in the year 2020. Counsel for the accused stated that he was allegedly minor at that time. Concession given by the courts of law due to his minority had not been taken in a good sense by the accused.

In view of the above, Court remarked:

“…it seems that he has taken the concession in wrong perspective that he can do anything even to destroy the very fundamental feature of the constitution which we called “secularism” by his hate speech and also that there is no force to stop him as if he is protected by some indefeasible forces and the Rule of Law does not exist in our country.

He has posed a real threat by his act that he will do whatever he wishes, what will the forces responsible for maintaining law, order and peace would do? He also posed a question to the state and to the courts of law whether it has power to uphold the Rule of Law?”

Bench expressed that no one can be allowed to ignite fire to religious riots only because he has freedom of speech and he can blow hatred towards a particular group or religious community.

If right of freedom of speech is allowed to be used to spread hatred amongst the people based on religion, caste etc then the very basic nature of the constitution and Indian Society will be shattered and the country will lose its true spirit and soul.

Conclusion

While concluding the decision, High Court held that the accused was seen addressing the mob instigating them for doing unlawful acts and further instigating them for the abduction of girls of a particular community and their forceful conversion. He even instigated to kill persons of a particular community and chanted slogans in this regard.

Further, the Bench stated that his acts were prejudicial to the maintenance of harmony between different religious communities and to disturb the public tranquillity.

Bench added that the police also seemed to be helpless in dealing with such incidents of hate speech.  These kinds of activities are actually disturbing the secular fabric of our Country and killing the spirit of the Constitution of India.

Court added that Peace is the essence and sine qua non for development and civilized society. Anyone who is a threat to the peace of the society and particularly to religious harmony, cannot be allowed to roam freely.

Incidents such as the one in the instant matter have become very common now-a-days and the common man is under constant threat of violence in the name of religion, caste, etc. The said incident cannot be seen only with respect of young man’s religious intolerance rather it is far more serious and having dangerous hidden consequences.

The faith of common man has to be restored that the State is having the Secular character and not in support of such kind of persons, promoting hatred and enmity in the name of religion, caste etc. It is the time to give a strong message to such anti-social elements who distribute hatred based on religion etc by way of Hate speech, the Rule of Law still prevails.

Further, with respect to bail, bench stated that enlarging the accused on bail despite his heinous crime which amounts to divide of the peaceful society on the basis of religion or caste would give the wrong message to the divisive forces.

However, restraining the accused behind the bars will send a strong message against the divisive forces by saying that India is an inclusive society where people of all faiths flourish with mutual respect and the Courts of Law will ensure that the Rule of law reigns supreme.

Hence, The act of the accused i.e. hate speech qua instigating abduction and killing of girls and persons of a particular religious community is itself a form of violence and such people and their inflammatory speeches are obstacles to the growth of a true democratic spirit.

“…consequences of these kinds of activities may be far more dangerous and it may translate into communal violence.”

Therefore, bail application of the accused was dismissed. [State of Rambhagat Gopal Sharma, FIR No. 265, decided on 15-07-2021]


Advocates before the Court:

Sh. S.P. Gothwal, APP for the State, assisted by IO SI Ramniwas-195/GGN, PS Pataudi.

Sh. Avinash Mishra, Sh. Kulbhushan Bhardwaj and Sh. Lokesh Vashisht, Advocates for accused/applicant Rambhagat Gopal Sharma.

Case BriefsHigh Courts

Bombay High Court: In a controversial case, wherein an FIR had been filed against the petitioner, Sunaina Holey for allegedly creating hatred and enmity between different religious communities, the Division Bench comprising of M.S. Karnik and S.S. Shinde, JJ., held that,

“The right to express one’s views is a protected and cherished right in our democracy. Merely because the point of view of the Petitioner is extreme or harsh will not make it a hate speech as it is only expressing a different point of view.”

Reportedly, the Petitioner had been booked under Section 153A of the Indian Penal Code, 1860 for her “Tweet” which she had posted on the social media website on 14-04-2020. The said tweet reads as: “Crowd shouting Yeh ALLAH KE TARAF SE NAHI HAI YE MODI KE TARAF SE HAI- What’s going to happen next @ ofceofut @ AUThackeray @priyankac19? PR karona ab. Blame it on @narendramodiji.Hain? Bandra Masjid Location Hai. Ab aur kuch bolu? Single Source Kaaf Hai. @ Dev_Fadnavis Help”.

Admittedly, in the video reposted by the petitioner a member of the crowd was seen blaming the Prime Minister of India for the outbreak of Covid-19 pandemic. It was the stand of the petitioner that the Petitioner was not the author or the creator of the said video and that, no case had been registered against the person(s) who created the said video. The Petitioner was unhappy with this viewpoint and reposted the video in order to criticize the same.

Whether reposting the video along with the tweet makes out a case of constituting offence under Section 153A of IPC?

Relying on the decision in Whitney v. California, 274 U.S. 357, 375—377[1927], the Bench reiterated, “fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches and burnt women. It is the function of speech to free men from the bondage of irrational fears. To justify suppression of free speech there must be reasonable ground to fear that serious evil will result if free speech is practiced. There must be reasonable ground to believe that the danger apprehended is imminent. There must be reasonable ground to believe that the evil to be prevented is a serious one.”

While considering the validity of the FIR against the Petitioner the Bench referred to various decisions of the Courts around the world including the Supreme Court of India. Consequently, the Bench opined that, some of the propositions which could be culled out and be considered in the contextual facts of the present case were:

  1. It is not an absolute proposition that one must wait for investigation to be completed before quashing FIR under Section 482 of Cr.PC as the same would depend upon the facts and circumstances of each case. (Manzar Sayeed Khan v. State of Maharashtra (2007) 5 SCC 1 and State of Haryana v. Chaudhary Bhajanlal 1992 SCC (Cri.) 426)
  2. The intention of the accused must be judged on the basis of the words used by the accused along with surrounding circumstances. (Manzar Sayeed Khan Vs. State of Maharashtra (2007) 5 SCC 1)
  3. The statement in question must be judged on the basis of what reasonable and strong minded persons will think of the statement, and not on the basis of the views of hypersensitive persons who scent danger in every hostile point of view. (Manzar Sayeed Khan v. State of Maharashtra (2007) 5 SCC 1)
  4. In order to constitute an offence under Section 153A of the IPC, two communities must be involved. Merely inciting the feeling of one community or group without any reference to any other community or group cannot attract either Section 153A. (Bilal Ahmad Kaloo v. State of A.P. (1997) 7 SCC 431 )
  5. The intention to cause disorder or incite people to violence is the sine qua non of the offence under Section 153A of IPC and prosecution has to prove prima facie the existence of mens rea on the part of the accused. (Balwant Singh v. State of Punjab, (1995) 3 SCC 214)
  6. A citizen or even an influential person is under no obligation to avoid a controversial or sensitive topic. Even expressing an extreme opinion in a given case does not amount to hate speech. (Amish Devgan v. Union on India, (2021) 1 SCC 1)
  7. The likelihood of harm arising out of the accused’s speech must not be remote, conjectural or far-fetched. ((Amish Devgan v. Union on India, (2021) 1 SCC 1)

Noticing that, the petitioner was not the author of the video. She had merely reposted it on her twitter, expressing her opinion thereby, criticizing the member in the crowd who blamed the Prime Minister of India for the outbreak of the pandemic and that no offence had been registered against the author of the video reposted by the petitioner, the Bench expressed,

“The State wants us to read too many things between the lines to come to the conclusion that an offence under Section 153A IPC is made out.”

The tweet in question, if judged on the basis of what a reasonable and strong minded person will think of it, would leave little manner of doubt that the same was only expressing a hostile point of view. Observing that the said video was already in circulation and the petitioner merely reposted the video on her twitter feed objecting the view point of the person in the video who was blaming the Prime Minister for the spread of virus., the Bench stated,

“The intention on the part of the Petitioner can by no stretch of imagination be said to cause disorder or incite people to violence which is sine qua non for the offence under section 153A of IPC.”

Assuming that the said tweet was an extreme view expressed in retaliation, the same still had to be judged from the standpoint of what the reaction of a strong minded, reasonable or a prudent person would be. Moreover, the contents of the tweet would reveal that neither any community nor any religion was named. The Bench stated that though the police machinery had ample opportunity to investigate, nothing had been placed on record to indicate that the said tweet led to any disturbance. Merely because a reference was made to Bandra Masjid in the tweet by the Petitioner would not attract the provisions of Section 153A of IPC since there was no disturbance reported immediately after the tweet was posted or even during the course of investigation as a result of the tweet. The Bench remarked,

“The Respondent’s approach towards the tweet is hypersensitive and over cautious thereby trying to scent danger in the hostile point of view expressed by the Petitioner.”

Consequently, after a careful and in-depth consideration, the Bench quashed the FIR filed against the Petitioner. [Sunaina Holey v. State of Maharashtra, Cr. WP No. 4732 of 2020, decided on 05-05-2021]


Kamini Sharma, Editorial Assistant has put this report together 

Appearance before the Court by:

Counsels for the Petitioner: Dr.Abhinav Chandrachud, Chandansingh Shekhawat, Yashowardhan Deshmukh, Sailee Dhayalkar and Farishta Menon

Counsels for the State: Manoj Mohite, Vivek Babar and J.P.Yagnik

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 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 BriefsSupreme Court

Supreme Court: The 2-judge bench of AM Khanwilkar and Sanjiv Khanna, JJ has 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.

The Court, however, accepted the prayer for transfer of all pending FIRs in relation to and arising out of the telecast/episode dated 15th June 2020 to P.S. Dargah, Ajmer, Rajasthan, where the first FIR was registered and also asked the concerned states to examine the threat perception of the petitioner and family members and take appropriate steps as may be necessary.

Background

On 15th June, 2020, Devgan had hosted a debate on his show ‘Aar Paar’ on News18 India on the Places of Worship (Special Provisions) Act, 1991 which, while excluding Ayodhya, prohibits conversion and provides for maintenance of the religious character of places of worship as it existed on 15th August, 1947. Some Hindu priest organisations had challenged vires of this Act before the Supreme Court, and reportedly a Muslim organization had filed a petition opposing the challenge.

The petitioner, while hosting the debate, had described Pir Hazrat Moinuddin Chishti, also known as Pir Hazrat Khwaja Gareeb Nawaz, as “aakrantak Chishti aya… aakrantak Chishti aya… lootera Chishti aya… uske baad dharam badle”. Translated in English the words spoken would read – “Terrorist Chishti came. Terrorist Chishti came. Robber Chishti came – thereafter the religion changed,” imputing that ‘the Pir Hazrat Moinuddin Chishti, a terrorist and robber, had by fear and intimidation coerced Hindus to embrace Islam.’

Devgan later tweeted an apology along with a clarification that he has faith in Banda Nawaz Hazrat Khwaja Moinuddin Chishti and has also gone on Ziyarat pilgrimage to Ajmer Sharif to offer respects and to worship. Expressing regret, he said that the attributed words were uttered inadvertently and by mistake; in fact, he wanted to refer to Alauddin Khilji and not Gareeb Nawaz Khwaja Moinuddin Chishti.

Here’s what he tweeted:

Analysis

On refusal to quash the FIRs

Rejecting the contention that criminal proceedings arising from the impugned FIRs ought to be quashed as these FIRs were registered in places where no ‘cause of action’ arose, the Court held that Section 179 of the Criminal Code provides that an offence is triable at the place where an act is done or its consequence ensues.

“The debate-show hosted by the petitioner was broadcast on a widely viewed television network. The audience, including the complainants, were located in different parts of India and were affected by the utterances of the petitioner; thus, the consequence of the words of the petitioner ensued in different places, including the places of registration of the impugned FIRs.”

After going through the relevant portions of the transcript of the debate anchored by the petitioner, the Court noticed that it was apparent that Devgan was an equal co-participant, rather than a mere host. The transcript, including the offending portion, would form a part of the ‘content’, but any evaluation would require examination and consideration of the variable ‘context’ as well as the ‘intent’ and the ‘harm/impact’. These have to be evaluated before the court can form an opinion on whether an offence is made out. The evaluative judgment on these aspects would be based upon facts, which have to be inquired into and ascertained by police investigation. ‘Variable content’, ‘intent’ and the ‘harm/impact’ factors, as asserted on behalf of the informants and the State, are factually disputed by the petitioner. In fact, the petitioner relies upon his apology, which as per the respondents/informants is an indication or implied acceptance of his acts of commission.

The Court, hence, concluded that it would not be appropriate at this stage to quash the FIRs and thus stall the investigation into all the relevant aspects.

Directing that no coercive steps for arrest of the petitioner need be taken by the police during investigation, the Court said that

“In case and if charge-sheet is filed, the court would examine the question of grant of bail without being influenced by these directions as well as any findings of fact recorded in this judgment.”

On transferring and clubbing all FIRs with the first FIR registered at P.S. Dargah, Ajmer, Rajasthan

In Babubhai v. State of Gujarat, (2010) 12 SCC 254 the test to determine sameness of the FIRs has been elucidated as when the subject matter of the FIRs is the same incident, same occurrence or are in regard to incidents which are two or more parts of the same transaction. If the answer to the question is affirmative, then the second FIR need not be proceeded with.

Further, in T.T. Antony v. State of Kerala, (2001) 6 SCC 181 it was held that the subsequent FIRs would be treated as statements under Section 162 CrPC.

Relying on this the Court directed that all the subsequent FIRs be transferred to PS Dargah, Ajmer and the statement of the complaint/informant forming the basis of the transferred FIRs would be considered as statement under Section 162 of the Criminal Code and be proceeded with.

Justifying it’s decision, the Court said,

“This would be fair and just to the other complainants at whose behest the other FIRs were caused to be registered, for they would be in a position to file a protest petition in case a closure/final report is filed by the police. Upon filing of such protest petition, the magistrate would be obliged to consider their contention(s), and may even reject the closure/final report and take cognizance of the offence and issue summons to the accused. Otherwise, such complainants would face difficulty in contesting the closure report before the Magistrate, despite and even if there is enough material to make out a case of commission of an offence.”

It was further explained that Section 186 CrPC relates to cases where two separate charge-sheets have been filed on the basis of separate FIRs and postulates that the prosecution would proceed where the first charge-sheet has been filed on the basis of the FIR that is first in point of time. Principle underlying section 186 can be applied at the pre-charge-sheet stage, that is, post registration of FIR but before charge-sheet is submitted to the Magistrate.

“In such cases ordinarily the first FIR, that is, the FIR registered first in point of time, should be treated as the main FIR and others as statements under Section 162 of the Criminal Code. However, in exceptional cases and for good reasons, it will be open to the High Court or this Court, as the case may be, to treat the subsequently registered FIR as the principal FIR. However, this should not cause any prejudice, inconvenience or harassment to either the victims, witnesses or the person who is accused.”

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


*Justice Sanjiv Khanna has penned this judgment

Also read: Freedom & rights cannot armour those who promote & incite violence| 15 notable excerpts on ‘hate speech’ from Supreme Court’s verdict in Amish Devgan case

OP. ED.SCC Journal Section Archives

CNLU_LJ_6_2016_17_1_1.png

(Let noble thoughts come to us from the universe)

Writing in 1859 J.S. Mill in “on liberty” emphasized that ‘the only purpose for which power can rightfully be exercised over any member of a civilized community, against his will, is to prevent harm’… In the part which merely concerns himself, his independence is of right absolute over himself, over his own body and mind, the individual is sovereign. Yet whatever mischief arises from their use, is greatest when they are employed against the comparatively defenceless; and whatever unfair advantage can be derived by any opinion from this mode of asserting it, accrues almost exclusively to received opinions.

Content and viability are essential for the assertion of Right in the wider sense. Content includes Ethical assertion which forms the critical importance of certain freedoms viz. freedom from (torture) and correspondingly about need to accept some social obligation to promote or safeguard these freedoms. Viability includes Open impartiality or open and informed scrutiny. Viability in impartial reasoning is central to the vindication of rights even if such reasoning is ambiguous or dissonant as in the case of American declaration, French Declaration, Universal Declaration of Human Rights. The focus is on fresh legislation.

The acceptance of a class of human rights will still leave room for further discussion, disputation and argument that is indeed that nature of discipline. The validity is ultimately dependent on the presumption of the claims of survivability in unobstructed discussion. It is extremely important, as Prof. Sen puts to understand this connection between human rights and public reasoning especially in relation to demands of objectivity.

The universability of human rights relates to the ideas of survivability in unobstructed discussion – open to participation by persons across national boundaries. Partisanship is avoided not so much by taking either a conjunction, or an intersection, of the views respectively held by dominant voices in different societies across the world … but through an interactive process, in particular by examining what would survive in public discussion, given a reasonably free flow of information and uncurbed opportunity to discuss differing points of view.

Read more… 


[This Article was first published in CNLU Law Journal CNLU LJ (6) [2016-17] 1. It has been reproduced with the kind permission of Eastern Book Company]

* Pro-Chancellor-Emeritus/Vice-Chancellor, Chanakya National Law University, Patna.

** Dean & Principal of New Law College, Bharati Vidyapeeth University, Pune.

3 Sardar Bhagat Singh was hanged on midnight of 23rd March 1931, thus advancing it from the dawn of 24th March, 1931. Martyr Bhagat Singh was 23 years at the time where he kissed the noose as it was lowered to his head.

4 Shreya Singhal v. Union of India(2015) 5 SCC 1.

5 AIR 1952 SC 196.

6 AIR 1967 SC 1643.

7 AIR 1952 SC 196.

8 (1973) 4 SCC 225.

9 (2005) 8 SCC 534, 563.

Case BriefsSupreme Court

“An insidious attempt has been made to insinuate that the community is involved in a conspiracy to infiltrate the civil services.”

Supreme Court: The 3-judge bench of Dr. DY Chandrachud, Indu Malhotra and KM Joseph, JJ has stayed the further telecast in continuation of or similar to the episodes which were telecast on 11, 12, 13 and 14 September, 2020 by Sudarshan news either under the same or any other title or caption. The case deals with telecast of a programme titled ‘Bindaas Bol’ on Sudarshan News which allegedly vilifies the Muslim community by portraying it to be involved in an act of terror or, as it is labelled, “jehad” in infiltrating the civil services of the nation.

BACKGROUND OF THE CASE

On 28 August 2020, the writ petition under Article 32 of the Constitution was moved for urgent directions since the telecast of a programme titled “Bindaas Bol” was to take place at 8 pm on Sudarshan news, however, the Court declined to issue a pre-broadcast interlocutory injunction. On the same day, a Single Judge of the Delhi High Court restrained Suresh Chavhanke from broadcasting the proposed programme and directed the Ministry of Information and Broadcasting to consider whether there was a violation of the Programme Code under the provisions of the Cable Television Networks (Regulation) Act, 1995. A communication was addressed on 09.09.2020 by the Union Government to Chavhanke to ensure that the broadcast of the programme is consistent with the provisions of the Programme Code. Since then, episodes of the programme based on the same theme have been broadcast on 11, 12, 13 and 14 4 September 2020. The remaining episodes comprising of a total of ten episodes are to be broadcast between 15 to 20 September 2020.

PETITIONER’s SUBMISSIONS

  • The content of the episodes which have been telecast constitutes hate speech directed against the Muslim community and vilifies the community by portraying it to be involved in an act of terror or, as it is labelled, “jehad” in infiltrating the civil services of the nation.
  • The circumstances which weighed this Court in declining to order a pre-broadcast injunction have substantially been altered.
  • In the course of the telecast, palpably false statements have been made in connection with the Muslim community, including among them the statements that:
    1. While the upper age limit for Hindus in the civil services examination is 32 years, the age limit for Muslims is 35 years; and
    2. While six attempts are made available for Hindus to appear for the civil services examination, Muslims are entitled to nine attempts.
  • A carefully orchestrated attempt has been made to target the Muslim Community as being involved in a conspiracy to infiltrate the civil services.
  • The broadcast falls in the realm of hate speech. Based on the programmes which have been aired by Sudarshan News Channel, promotional videos have been placed in the public realm on their Twitter handle in pursuance of which a large number of persons have responded with responses which border on hatred towards the Muslim community.

SOLICITOR GENERAL TUSHAR MEHTA’S SUBMISSIONS

  • Some of the broader issues which have been raised in the present case would have to be addressed from the perspective of regulating not merely the electronic media but other forms of media as well, through which information which is purveyed can transgree the line of permissible content which can be shared and aired.
  • In pursuance of the order of the Delhi High Court, the Ministry of Information and Broadcasting issued a communication on 9 September 2020 stating that if there is a breach of the Programme Code, the Government would consider whether a case has been made out for recourse to its powers under the law.

SENIOR ADVOCATE SHYAM DIVAN’S SUBMISSIONS, FOR SURESH CHAVHANKE

  • There is no change in the position as it existed when this Court declined to grant a pre-broadcast injunction on 28 August 2020.
  • Chavhanke has embarked on an investigative exercise, this being a part of the fundamental duty of a journalist to convey information to the public.
  • The programmes raise issues pertaining to national security.
  • The contents of the programmes indicate the involvement of foreign funding.

COURT’s OBSERVATIONS

The Court noticed that at this stage, prima facie, it does appear to the Court that the intent, object and purpose of the episodes which have been telecast is to vilify the Muslim community.

“An insidious attempt has been made to insinuate that the community is involved in a conspiracy to infiltrate the civil services.”

Several statements in the episodes, which have been drawn to the attention of the Court are not just palpably erroneous but have been made in wanton disregard of the truth. There is no relaxation either in the age limit or in the number of attempts available to the Muslim community in the civil services. The drift, tenor and content of the episodes is to bring the community into public hatred and disrepute.

Stating that the Court is duty bound to ensure compliance with the salutary principles of the Programme Code, the bench said that the Programme Code has been formulated under Rule 6 of the Cable and Television Networks (Regulation) Rules and has statutory force and effect.

  • Rule 6(1)(c), inter alia, stipulates that no programme should be carried which “contains attack on religions or communities or visuals or words 8 contemptuous of religious groups or which promote communal attitudes”.
  • Under Rule 6(1)(d), the Programme Code should not, inter alia, contain anything which is defamatory, false or reflective of “half – truths and suggestive innuendos”.
  • A breach of the Programme Code is subject to sanctions under Sections 19 and 20 of the Cable and Television Networks (Regulation) Act, 1995.

The edifice of a democratic society committed to the rule of law under a regime of constitutional rights, values and duties is founded on the co-existence of communities. India is a melting pot of civilizations, cultures, religions and languages.

“Any attempt to vilify a religious community must be viewed with grave disfavour by this Court as the custodian of constitutional values. Its duty to enforce constitutional values demands nothing less.”

Restraining the Channel from further telecast of the show, the Court listed the matter for further hearing on September 17, 2020.

[Firoz Iqbal Khan v. Union of India, 2020 SCC OnLine SC 737, order dated 15.09.2020]

COVID 19Hot Off The PressNews

During the 44th session of the Human Rights Council, UN High Commissioner for Human Rights — Michelle Bachelet issued a statement where it was pointed that,

In Sri Lanka and India, members of the Muslim minority are being targeted by stigma and hate speech associating them with COVID-19.

Expressing her dismay by reports indicating that in many countries, members of minority communities and migrants face increasing stigmatisation – including, in some cases, by officials, she also added that,

 In Bulgaria, Roma people have been stigmatised as a public health threat, with some local authorities setting up checkpoints around Roma settlements to enforce lockdowns. In Pakistan, hate speech against religious minorities remains virulent. Stigmatization and threats against people presumed to be infected by COVID-19 have also been reported in Haiti, Iraq and many other countries.

In a debate, Council rightly highlighted the importance of principled and non-discriminatory policing in upholding human rights.

Discrimination kills. Depriving people of their social and economic rights, kills. And these deaths and harms damage all of society. COVID-19 is like a heat-seeking device that exposes, and is fuelled by, systemic failures to uphold human rights.


To read the full statement issued by UN High Commissioner for Human Rights, please follow the link below:

https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=26015&LangID=E

Case BriefsHigh Courts

Karnataka High Court: A Division bench of B.V. Nagarathna and M.G. Uma, JJ., dismissed a petition filed to call for records from the respondents with respect to any action taken by them in connection with the offences and violations specified in the petition, direct the respondents to take action in accordance with law against the media houses and political leaders who have done and continue to violate the law in impunity.

This present public interest litigation was filed by an unregistered organization called ‘Campaign against Hate Speech’, (CAHS), secondly by a social anthropologist, a former Professor at the National Institute of Advanced Studies, Bengaluru while the third petitioner is stated to be an accomplished researcher based in Bengaluru who is engaged in the work and analysis of issues pertaining to human rights and social justice.

Petitioner’s counsel, Harish B. Narasappa contended that the complaints have been made in the background of COVID-19 which has engulfed the world including India and in the context of the outbreak of COVID-19 pandemic there had been inciteful and irresponsible speeches and reports made by certain political personalities and also in media accusing certain sections of the society. He submitted that the said acts of inciteful speech and utterances in media, social media as well as by the political personalities amounts to hate speech.

Additional Advocate General, R. Subramanya countered the aforesaid arguments by stating that the writ petition was not in public interest at all and if any of the complainants had filed complaints by following the provisions of Criminal Procedure Code, 1973 and the same have not been acted upon, they have a remedy under the provisions of CrPC itself.

Additional Solicitor General for India M.B. Naragund, stated that it is not a public interest litigation but a “publicity interest litigation”.

The Court while dismissing the petition explained that some of the prayers were vague and the interim prayers which have been sought cannot be sought by filing a writ petition invoking Article 226 of the Constitution. The Court suggested that there were enough protection of substantive and procedural law to the aggrieved persons who think or consider certain speech to be hate speech to seek their respective remedies. Therefore, there is already a voluminous bundle of rights and remedies created in various enactments for aggrieved persons to complain against what they consider to be hate speech.

In the present scenario, since the Parliament has not yet thought it appropriate to legislate on the concept of ‘hate speech’, in this writ petition, in the absence of there being any definition of ‘hate speech’ as such, this Court in exercise of its jurisdiction under Article 226 of the Constitution of India cannot issue directions merely on the basis of impact of hate speech on the society in general or certain sections of the society in particular.

Further, relying on A.K. Roy v. Union of India (1982) 1 SCC 271, the bench held that it would be inappropriate for the Court to exercise its jurisdiction under Article 226 of the Constitution of India to direct either the Parliament or the State Legislature. [Campaign against Hate Speech v. State of Karnataka, 2020 SCC OnLine Kar 540 , decided on 13-05-2020]

Hot Off The PressNews

As reported by ANI, 

Petitions have been filed seeking registration of FIR against Rahul Gandhi, Sonia Gandhi, Priyanka Gandi, Manish Sisodia, Assaduddin Owaisi and Akbaruddin Owaisi over their alleged hate speeches.

Application also sought directions to the National Investigation Agency to probe violence in North-East Delhi.


[Source: NIA]

Case BriefsHigh Courts

Allahabad High Court: Recently, the High Court issued gag order in Yogi Adityanath’s hate speech case of 2008 stating clearly that no one shall publish or cause to be published any proceedings of this case till the delivery of the judgment.

Additional Advocate General Shri Manish Goel brought to the notice of the Court that wrong reporting of the day-to-day proceedings of this case was being made by the media causing lot of embarrassment as the Court’s observations are often being misquoted. The Court noted that this fact was brought to its notice earlier also to which it had issued oral directions not to publish any misleading reports.  So, this time, it ordered a written order gagging media to report any thing on the specified case. [Parvez Parwaz v. State of U.P.,  2017 SCC OnLine All 2509, decided on 7.11.2017]

High Courts

Allahabad High Court: While deciding the case where a writ of quo warranto was issued against Mohammed Azam Khan, who is Cabinet Minister of State of U.P. for holding office of profit as Chancellor of Mohammad Ali Jauhar University, Rampur which entitled him of salary, allowances and other prerequisites attached to the office, the division bench of D.P. Singh and A.K. Tripathi (II), JJ issued the notice to the respondent as the averments made in the affidavit ware not denied by the respondent. The Court further held that a person holding the office of profit could not be appointed as Cabinet Minister.

The petitioner who was represented by Asok Pande also prayed for lodging FIR against respondent on account of hate speeches given by him, on the other hand respondent, who was represented by Bulbul Goldiyal and A.N. Trivedi, argued that petitioners have not lodged the FIR with regard to alleged hate material.  The Court though found the contents of the press release derogatory and observed that a person holding constitutional post is expected to respect all persons of other sects, community or religion equally, but affirmed the contention of the respondent on the basis of decision of Supreme Court in Pravasi Bhalai Sangathan v. Union of India 2014 SCC OnLine SC 221 which held that prime remedy available to person aggrieved by hate speeches is to approach under the remedy provided under the penal law

The Court finally issued the notice to respondents and directed them to file a counter affidavit within six weeks containing reply to the writ petition. Raza Husain v. Md Azam Khan., Misc.Bench No. – 8580 of 2014, Decided on 25.09.2014 

To read the full judgment, refer SCCOnLine