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Interpretation of A.19(1)(a)&19(2), and S.153A, 295A & clause (2) of S.505 of IPC: SC reiterates

SC decided on interpreting Article 19(1)(a) and 19(2) of the Constitution, and Sections 153A, 295A and clause (2) of Section 505 of IPC


Ruling that the right to free speech is not absolute as Article 19(2) of the Constitution envisages reasonable restrictions, this court observed that the phrase ‘public order’, as a ground for restricting the freedom of speech, incorporated in Article 19(2) vide the Constitution (First Amendment) Act, 1951 with retrospective effect, reads ‘in the interest of public order’, which connotes a much wider import than ‘maintenance of public order’.(Para 30)



AMISH DEVGAN Vs UNION OF INDIA AND OTHERS

WRIT PETITION (CRIMINAL) NO. 160 OF 2020

DECEMBER 07, 2020


The Hon’ble Supreme Court Justice A.M. KHANWILKAR and Justice 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.

Having interpreted the relevant provisions, we are conscious of the fact that we have given primacy to the precept of ‘interest of public order’ and by relying upon ‘imminent lawless action’ principle, not given due weightage to the long-term impact of ‘hate’ speech as a propaganda on both the targeted and non-targeted groups. This is not to undermine the concept of dignity, which is the fundamental foundation on the basis of which the citizens must interact between themselves and with the State. This is the considered view of the past pronouncements including the Constitution Bench judgments with which we are bound. Further, a ‘hate speech’ meeting the criteria of ‘clear and present danger’ or ‘imminent lawless action’ would necessarily have long-term negative effect. Lastly, we are dealing with penal or criminal action and, therefore, have to balance the right to express and speak with retaliatory criminal proceedings. We have to also prevent abuse and check misuse. This dictum does not, in any way, undermine the position that we must condemn and check any attempt at dissemination of discrimination on the basis of race, religion, caste, creed or regional basis. We must act with the objective for promoting social harmony and tolerance by proscribing hateful and inappropriate behaviour. This can be achieved by self-restraint, institutional check and correction, as well as self-regulation or through the mechanism of statutory regulations, if applicable. It is not penal threat alone which can help us achieve and ensure equality between groups. Dignity of citizens of all castes, creed, religion and region is best protected by the fellow citizens belonging to non-targeted groups and even targeted groups. As stated earlier, in a polity committed to pluralism, hate speech cannot conceivably contribute in any legitimate way to democracy and, in fact, repudiates the right to equality (Para.69)

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. 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, this 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 as he had incited religious hatred towards Muslims.


The petitioner contended that he did not have any malicious intent and mens rea to outrage religious beliefs and feelings. He stated that the programme has to be judged from the standard of a reasonable and strong-minded person and at best the words exhibit carelessness without any deliberate and malicious intent, which would fall outside the ambit of Sections 153A, 295A and 505(2) of the Penal Code.


Decisions of the Hon’ble Supreme Court and High Courts interpreting Article 19(1)(a) and 19(2) of the Constitution, and Sections 153A, 295A and clause (2) of Section 505 of the Penal Code are as follows,

The constitutional validity of Section 295A was upheld in Ramji Lal Modi. Section 295A criminalises the act of insulting religious beliefs with the deliberate intention to outrage religious feelings of a class of citizens.


Ruling that the right to free speech is not absolute as Article 19(2) of the Constitution envisages reasonable restrictions, this court observed that the phrase ‘public order’, as a ground for restricting the freedom of speech, incorporated in Article 19(2) vide the Constitution (First Amendment) Act, 1951 with retrospective effect, reads ‘in the interest of public order’, which connotes a much wider import than ‘maintenance of public order’. This distinction between ‘maintenance of public order’ and ‘in the interest of public order’ was reiterated by another Constitution Bench of five Judges of this Court in Virendra/K.Narendra. (Para 30)


“9...Section 295-A does not penalise any and every act of insult to or attempt to insult the religion or the religious beliefs of a class of citizens but it penalises only those acts of insults to or those varieties of attempts to insult the religion or the religious beliefs of a class of citizens, which are perpetrated with the deliberate and malicious intention of outraging the religious feelings of that class...”


Hon’ble Justice Fazl Ali had held in a case that the concept of ‘security of state’ was very much allied to the concept of ‘public order’ and that restrictions on the freedom of speech and expression could validly be imposed in the interest of public order.


Referring to the judgment of Kedar Nath Singh, the Court observes that,

With reference to Section 505 of the Penal Code, Kedar Nath Singh observes that each of the three clauses of the Section refer to the gravamen of the offence as making, publishing or circulating any statement, rumour or report – (a) with the intent of causing or which is likely to cause any member of the Army, Navy or Air Force to mutiny or otherwise disregard or fail in his duty as such; or (b) cause fear or alarm to the public or a section of the public which may induce the commission of an offence against the State or against public tranquillity; or (c) incite or which is likely to incite one class or community of persons to commit an offence against any other class or community. Constituent elements of each of the three clauses have reference to the direct effect on the security of the State or public order. Hence, these provisions would not exceed the bounds of reasonable restriction on the right to freedom of speech and expression(Para.33)


The Hon’ble Supreme Court has struck down Section 66A of the Information Technology Act on various grounds, including unreasonableness of the restriction, absence of requirements of clause (2) to Article 19, including public order in Shreya Singhal. With reference to the public order aspect of clause (2) of Article 19 and the reasonable restriction mandate, it was observed that they connote limitation on a person in enjoyment of the right, and should not be arbitrary and excessive in nature, beyond what is required by the specific clause applicable in the said case.


In Subramanian Swamy v. Union of India and Others, the expression ‘reasonable restriction’ has been elucidated to connote that the restriction cannot be arbitrary or excessive and should possess a direct and proximate nexus with the object sought to be achieved.


It is noted that, right to equality is embodied not only in Article 14, but also finds different manifestations in Articles 15 to 18 of Part III, and Articles 38, 39, 39A, 41 and 46 of Part IV. Thus, right to equality has many facets, and is dynamic and evolving. Thus the State has the obligation to take necessary steps so that every individual is given equal respect and enjoys dignity as others, irrespective of caste, creed, religion, identity, sexual preference etc.


Section 153A has been interpreted in Manzar Sayeed Khan and Balwant Singh that the Section then enacted had referred to words, spoken or written, or signs or visible representation or other means that promote or attempt to promote feeling of enmity or hatred between different classes of citizens of India which shall be punished with imprisonment that may extend to two years or fine or with both. It is also observed that in Balwant Singh case, it was accepted that mens rea is an essential ingredient of the offence under Section 153A and only when the spoken or written words have the intention of creating public disorder for disturbance of law and order or affect public ‘tranquillity’, an offence can be said to be committed.


The Hon’ble Supreme Court observed and held that,

Majority of the cases referred to by the petitioner were cases wherein after charge-sheet and trial, this Court had come to the conclusion that no offence had been proved and established under Section 153A, 295A or sub-section (2) to Section 505 of the Penal Code. We do not deem it necessary to reproduce the facts of those decisions and apply their ratio in the present case. However, we would like to refer to judgments where this Court has at the initial stage itself quashed the proceedings arising out of the FIR, namely, Manzar Sayeed Khan, Mahendra Singh Dhoni, Ramesh as well as Balwant Singh to clarify the ratio(Para.70).

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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