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‘Good faith’ & ‘(no)-legitimate purpose’ exclusions are accepted as exception: SC on Hate speech

Further, the law of ‘hate speech’ recognises that all speakers are entitled to ‘good faith’ and ‘(no)-legitimate purpose’ protection. ‘Good faith’ means that the conduct should display fidelity as well as a conscientious approach in honouring the values that tend to minimise insult, humiliation or intimidation. (Para 53)



AMISH DEVGAN Vs UNION OF INDIA AND OTHERS

WRIT PETITION (CRIMINAL) NO. 160 OF 2020

DECEMBER 07, 2020


The Hon’ble Supreme Court Justices A.M. KHANWILKAR and SANJIV KHANNA rejected the prayer of Amish Devgan (petitioner) for quashing of the FIRs which were registered against him as he remarked against Pir Hazrat Moinuddin Chishti.


Amish Devgan, a journalist who is presently the managing director of several news channels owned and operated by TV18 Broadcast Limited hosts and anchors debate shows ‘Aar Paar’ on News18 India and ‘Takkar’ on CNBC Awaaz. The petitioner had hosted and anchored a debate on the enactment 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 organizations had challenged this Act before the Supreme Court, and a Muslim organization had filed a petition opposing the challenge. It is stated that 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, which means,

“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.


The Petitioner was opposed by the states of Maharashtra, Rajasthan, Telangana and Uttar Pradesh, and the private respondents.


The petitioner pleaded the defence of causing slight harm and hate speech. But the Court held that,

The petitioner has relied upon the decision of this Court in Veeda Menez and the decision of the High Court of Delhi in Neelam Mahajan to plead the defence of trifle under Section 95 of the Penal Code. We are not inclined at this stage to entertain this defence of the Petitioner. Section 95 is intended to prevent penalisation of negligible wrongs or offences of trivial character. Whether an act, which amounts to an offence, is trivial would undoubtedly depend upon the evidence collated in relation to the injury or harm suffered, the knowledge or intention with which the offending act was done, and other related circumstances. These aspects would be examined and considered at the appropriate stage by the police during investigation, after investigation by the competent authority while granting or rejecting sanction or by the Court, if charge-sheet is filed. The present case cannot be equated with either Veeda Menez or Neelam Mahajan’s case where the factual matrix was undisputed and admitted. It would be wrong and inappropriate in the present context to prejudge and pronounce on aspects which are factual and disputed. The ‘content’ by itself without ascertaining facts and evidence does not warrant acceptance of this plea raised by the petitioner. The defence is left open, without expressing any opinion(Para.14)


The meaning of ‘hate speech’ was enhanced and distinction between free speech and hate speech was observed. It was stated that, the law of ‘hate speech’ recognises that all speakers are entitled to ‘good faith’ and ‘(no)-legitimate purpose’ protection.


It is necessary to draw a distinction between ‘free speech’ which includes the right to comment, favour or criticise government policies; and ‘hate speech’ creating or spreading hatred against a targeted community or group. The former is primarily concerned with political, social and economic issues and policy matters, the latter would not primarily focus on the subject matter but on the substance of the message which is to cause humiliation and alienation of the targeted group(Para.54)


It was held that the object of criminalising hate speech is to protect the dignity and to ensure political and social equality between different identities and groups regardless of caste, creed, religion, sex, gender identity, sexual orientation, linguistic preference etc.


An article by Alice E. Marwick and Ross Miller of Fordham University, New York (USA) which elucidates on three distinct elements that legislatures and courts can use to define and identify ‘hate speech’ was noted. According to which the elements of hate speech are content-based element, intent-based element and harm-based element (or impact-based element).


The content-based element involves open use of words and phrases generally considered to be offensive to a particular community and objectively offensive to the society. It can include use of certain symbols and iconography. The intent-based element of ‘hate speech’ requires the speaker’s message to intend only to promote hatred, violence or resentment against a particular class or group without communicating any legitimate message. This requires ‘Online harassment, defamation, and hateful speech. The harm or impact-based element refers to the consequences of the ‘hate speech’, that is, harm to the victim which can be violent or such as loss of selfesteem, economic or social subordination, physical and mental stress, silencing of the victim and effective exclusion from the political arena. Nevertheless, the three elements are not watertight silos and do overlap and are interconnected and linked.


Content and Context were explained as, ‘content’ has relation with the subject-matter, but is not synonymous with the subject-matter. ‘Content’ has more to do with the expression, language and message which should be to vilify, demean and incite psychosocial hatred or physical violence against the targeted group. Context has a certain key variable, namely, ‘who’ and ‘what’ is involved and ‘where’ and the ‘occasion, time and under what circumstances’ the case arises. The ‘who’ encompasses the speaker who utters the statement that constitutes ‘hate speech’ and also the audience to whom the statement is addressed which includes both the target and the others.



Good faith was also defined as ‘Good faith’ means that the conduct should display fidelity as well as a conscientious approach in honouring the values that tend to minimise insult, humiliation or intimidation. The important requirement of ‘good faith’ is that the person must exercise prudence, caution and diligence.


Our observations are not to say that persons of influence or even common people should fear the threat of reprisal and prosecution, if they discuss and speak about controversial and sensitive topics relating to religion, caste, creed, etc. Such debates and right to express one’s views is a protected and cherished right in our democracy. Participants in such discussions can express divergent and sometimes extreme views, but should not be considered as ‘hate speech’ by itself, as subscribing to such a view would stifle all legitimate discussions and debates in public domain. Many a times, such discussions and debates help in understanding different view-points and bridge the gap. Question is primarily one of intent and purpose. Accordingly, ‘good faith’ and ‘no legitimate purpose’ exceptions would apply when applicable(Para.56)


Andrew F. Sellars, in his essay ‘Defining Hate Speech’ has examined the concept of hate speech in different democratic jurisdictions, and refers to attempts to define ‘hate speech’ by scholars and academics, including Mari J. Matsuda, Mayo Moran, Kenneth D. Ward, Susan Benesch, Bhikhu Parekh and others. The Author has formulated common traits in defining ‘hate speech’ observing that this would be helpful and relevant in considering Andrew F. Sellers, Defining Hate Speech, published by Berkman Klein Center for Internet & Society at Harvard University how the society should respond. These can be categorised as follows:

(a) Hate speech targets a group, or an individual as a member of the group. The word ‘group’ has been traditionally used with reference to historically oppressed, traditionally disadvantaged or minority, but some prefer not to look for a defined group but to see whether the speaker targets someone based on an arbitrary or normatively irrelevant feature. The expression ‘group’ would include identification based upon race, ethnicity, religion, gender, sexual orientation, sexual identity, appearance, physical ability, etc.;

(b) Content of the message should express hatred. Hostility towards a group in the spoken words reflects the intent of the speaker. One should be able to objectively identify the speech as an insult or threat to the members of the targeted group, including stigmatising the targeted group by ascribing to it qualities widely disregarded as undesirable;

(c) Speech should cause harm, which can be physical harm such as violence or incitement and true threats of violence and can include deep structural considerations caused by silent harm because of the victim’s desperation that they cannot change the attribute that gives rise to hatred. The speech could permeate and impact the victim’s relationship with others, cause denial of oneself and result in structural harms within the society;

(d) Intent of the speaker to cause harm or other bad activity to most is an essential feature of hate speech. In some statutes it can be even tacit inherent component. However, what the speaker should intend to constitute hate speech is subject to varied positions. Intent may refer to non-physical aspects like to demean, vilify, humiliate, or being persecutorial, disregarding or hateful, or refer to physical aspects like promoting violence, or direct attacks. However, speakers can lie about their intent not only to others but to themselves. Intent may be disguised and obscured;

(e) Speech should incite some other consequence as a result of the speech. Incitement could be of non-physical reactions such as hatred, or physical reactions such as violence. Certain jurisdictions require that the incitement should be imminent or almost inevitable and not too remote;

(f) Context and occasion of the speech is important. This requirement means looking into the factors such as the power of the speaker, place and occasion when the speech was made, the receptiveness of the audience and the history of violence in the area where the speech takes place. It requires examination whether the statement was made in the public to the view of the targeted group as an undesirable presence and a legitimate object of hostility. In certain contexts, at ‘home speeches’ may themselves amount to hate speeches as the said speeches are now uploaded and circulated in the virtual world through internet etc.; and lastly

(g) Speech should have no redeeming purpose, which means that ‘the speech primarily carries no meaning other than hatred towards a particular group’. This is necessarily subjective and requires examination of good faith and good motives on the part of the speaker. ‘No legitimate purpose’ principle being abstract has difficulties, albeit is well documented. ‘Good faith’ and ‘no legitimate purpose’ exclusions are accepted as a good exception.(Para.29)


The Hon’ble Supreme Court held that, this case does not relate to ‘hate speech’ causally connected with the harm of endangering security of the State, but with ‘hate speech’ in the context of clauses (a) and (b) to sub-section (1) of Section 153A, Section 295A and sub-section (2) to Section 505 of the Penal Code.


The Court rejected the prayer of the petitioner for quashing of the FIRs but has granted interim protection against arrest subject to his joining and cooperating in investigation till completion of the investigation. They have accepted the prayer of the petitioner for transfer of all pending FIRs in relation to and arising out of the telecast/episode to Ajmer. The Court also the concerned states to examine the threat perception of the petitioner and family members and take appropriate steps as may be necessary.


Thus, the writ petition and all pending applications were, accordingly, disposed of.



M.Nandhitha

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