TaxTMI 
TaxTMI 
2020 (12) TMI 1216
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.... Kshitij Kumar, Adv., Mr. Fuzail Ahmad Ayyubi, AOR, Mr. Ibad Mushtaq, Adv., Ms. Akanksha Rai, Adv., Mr. Rameshwar Prasad Goyal, AOR, Mr. Ejaaz N. Shaikh, Adv., Mr. Vatsalya Vigya, AOR, Mr. Shakil Ahmed Syed, AOR JUDGMENT Sanjiv Khanna, J. 1. Applications for intervention are allowed. 2. The writ Petitioner, Amish Devgan, is a journalist who, it is stated, is presently the managing director of several news channels owned and operated by TV18 Broadcast Limited, including News18 Uttar Pradesh/Uttarakhand, News18 Madhya Pradesh/Chhattisgarh and News18 Rajasthan 3. The Petitioner hosts and anchors debate shows 'Aar Paar' on News18 India and 'Takkar' on CNBC Awaaz. On 15th June, 2020, at around 7:30 p.m., the Petitioner had hosted and anchored a debate on the enactment 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. ....
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....h June, 2020 at P.S. Sector-20, Noida, Uttar Pradesh, and submitted the links to the threats received through social media platforms. 6. On or about 22nd June, 2020, the present writ petition was filed Under Article 32 of the Constitution of India with an application for interim relief. This writ petition came up for hearing on 26th June, 2020 whereby notice was issued with a direction to the Petitioner to implead the informants in the respective FIRs/complaints. An interim order was passed directing that till the next date of hearing there would be a stay on further steps/action on the FIRs mentioned in the writ petition, relating to the telecast dated 15th June, 2020, and the Petitioner was protected against any coercive process arising out of or relating to the said FIRs. 7. Pursuant to the aforesaid liberty, the writ petition was amended to implead the complainants. Thereafter, the writ petition was amended on a second occasion. The prayers made in the last amended writ petition to this Court are: (a) for issue of writ of certiorari, quashing the complaints/FIRs referred to above or any other FIR or criminal complaint which may be filed thereafter relating ....
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.... picking up select words and not on the programme as a whole; the Petitioner did not have any malicious intent and mens rea to outrage religious beliefs and feelings; 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 fall outside the ambit of Sections 153A, 295A and 505(2) of the Penal Code. * In the alternative, it is submitted that a case of trifle or minor harm is made out, which would be covered by Section 95 of the Penal Code. * Again, in the alternative, it is submitted that all the FIRs should be clubbed and transferred to Noida or Delhi. Counsel for the Petitioner has relied upon the following decisions in support of his contention-Arnab Ranjan Goswami v. Union of India and Ors. Balwant Singh and Anr. v. State of Punjab (1995) 3 SCC 214, Bhagwati Charan Shukla s/o. Ravishankar Shukla v. Provincial Government, C.P. & Berar AIR 1947 Nagpur 1, Bilal Ahmed Kaloo v. State of A.P. (1997) 7 SCC 431, Brij Bhushan and Anr. v. State of Delhi AIR 1950 SC 129, Devi Sharan Sharma v. Emperor AIR 1927 Lah 594, Emperor v. Sad....
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....onvert its population to Islam. The pretext of inadvertent mistake is an afterthought and a sham and unreal defence. Respondent No. 9, namely, Saber Chausa Mohd. Naseer, in his affidavit has stated that the name of Khwaja Moinuddin Chishti as a Sufi Saint was taken by one of the panelists when the topic of conversion was being debated. The panelist had gone on record to state that the conversions at the time of Khwaja Moinuddin Chishti happened for moral, religious and spiritual reasons and the devotees and followers of Khwaja Moinuddin Chishti were inspired by his teachings. The affidavit also states that the discussion at that time was not in relation to Mughals or with reference to Aurangzeb or Allaudin Khilji. Further, the Petitioner had tampered with the broadcast of the debate uploaded on YouTube on 16th June, 2020, by deliberately deleting the part wherein the Petitioner had used the word 'aakrantak Chishti' (twice) and 'lootera Chishti'. These acts of sieving out of offensive portions, and the subsequent apology were after the Petitioner had learnt about the protests and registration of the FIRs at Ajmer and other places. The Respondents claim that the apolo....
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....rity.2 * The two persons, whose credentials the Petitioner has mentioned in the petition, to press that the members of the community have forgiven him, is false. These two people as TV personalities and nowhere represent the devotees of Khwaja Chishti.8 * FIR need not have an encyclopaedia of the event. Even if only material facts have been disclosed, it is enough to continue with criminal proceedings.8 * Some communal elements in Maharashtra, after the broadcast of the utterances by the Petitioner, used this opportunity and started circulating this video to spread hatred.8 * Article 19(1)(a) of the Constitution is subject to express limitations Under Article 19(2) of the Constitution. * The police should be permitted to file report Under Section 173 of the Code of Criminal Procedure and court should frame the charges. Then only the Petitioner would get the opportunity to defend himself in the court. Respondent No. 9 and Respondent No. 6 * Section 19 of the Cable TV (Regulation) Act prohibits cable TV network to broadcast any content that promotes hate or ill will.5 * The broadc....
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....n was opposed by a Muslim organisation stating that if notice is issued there would be widespread fear among the Muslim community. After the prelude initiating the debate, the Petitioner, as per the transcript, had stated "Today, this will be the key issue of the debate... Ayodhya Verdict delivered, Why Kashi-Mathura issue left unresolved?... asking Hindu Priests!". The Petitioner as per the transcript had then declaimed: Now analyse the legal position of Kashi Mathura issue...Hindu Priest organisation has reached Supreme Court against Places of Worship (Special Provisions) Act, 1991...According to this Act of 1946, the de facto position of any religious place could not be altered in any condition...According to Act a mosque could not be changed into temple or a temple could not be changed into mosque...This is impossible...The Ayodhya issue was out of this ambit as it was already in litigation. The Ayodhya issue was 100 year old dispute...The priest organisation says that Places of Worship (Special Provisions) Act, 1991 is against the Hindus...Today we are not debating the issue of Kashi or Mathura...we are debating the Places of Worship (Special Provisions) Act, 19....
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.... Amish Devgan: Point Number-2: You have said that with a clever step...Atiq-Ur-Rehman Ji I've listened your statement, you talked around 2-2½ minutes. You said that the verdict on the Ayodhya case came on the board cleverly. But, I want to refresh your memory; in the year of 1991-92 when there had the slogan for the Ayodhya in the air the Sant Samaj, VHP, Rashtriya Swayamsevak Sangh and authentic persons of the Hindu Samaj used to say Ayodhya jhanki hai, Kashi-Mathura baki hai. So the demand is very old. The wish is too old. But when the Ayodhya's wish was fulfilled then definitely after that verdict you are raising the question on your own ways. That is your take. Now I'm moving to Dr. Sudhanshu Trivedi, Jamiat Ulema-e-Hind are saying that if these types of petitions to be heard then thee will be a danger to the Muslim worship places. xx ....
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....; xx xx Amish Devgan: Mr. Vinod Bansal, there is a symbol of Om is showing behind you. Om, the symbol of peace. But Maulana Ali Kadri is saying; you want to spread Ashanti. You have defeated by corona and now seeking a base from the Mathura-Kashi issues. After these issues you will raise the Jama Masjid matter and Taj Mahal will be in your hit list. xx xx ....
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.... removed. Are you talking about demolishing the temples? The Ram Mandir which will be constructed, have you will demolish it as well? And the second thing is, the Ram Mandir verdict came on basis of the faith and we are not satisfied with the decision. So we moved to the court. This is the matter of justice not of any religion's issue. Now we will not allow any goon to insult the saffron colour. The terror was made with demolishing the Babri Masjid. Amish Devgan: What you said? Repeat it. The insult of the saffron colour...we...any...what did you say? Shadab Chaudhary: Listen...insult of the saffron colour. We don't allow any goon to demolish any worship place and don't allow kill the innocents. Amish Devgan: No...You can't say goons to the Sant Samaj. I objected completely. Shadab Chauhan you said a wrong thing. You said India's Sant Sama/Purohit-Pande of the country are goons. Mahant Nawal Kishor Das: These people should apologise. You invite such people for the debate? They didn't pay respect to their ancestors too. Due to the fear they converted in the other religion. &nb....
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....onverts. Amish Devgan: Maulana sahib, you took the name of Chishti...Now tell me, you are in today's age, after watching Donald Trump, he is a Christian, you will not change your religion, will not change religion after seeing Prime Minister Narendra Modi's religion... xx xx xx Maulana Ali Qadri: Seeing the implementation of Khwaja Moinuddin Chishti...Seeing the Talimat of Islam that all live together, there is no inferiority...Seeing Moinuddin's life, people acce....
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.......Why they were silent... Vinod Bansal: This case was in consideration before Ram Mandir issue. Ateeq-ur-Rehman: Amish ji...Mahant ji talking about Hindu pride...What about Buddhist pride... xx xx xx Amish Devgan: I am stopping for break Sudhanshu ji Sudhanshu ji I am staying for break but on public demand, Shadab Chauhan will apologize after the break...I will go to Shadab Chauhan after the break...He will apologize to the whole saint society...I am coming ba....
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....ho destroy the Constitution... Amish Devgan: Shut up and get out. You are out...You are not fit to sit in this debate. You are out...Turn these out. Turn off the audio. Keep eating the minds of your family...get out of here...I am asking you Qadri sahib...the words used by Shadab Chauhan, were they wrong or right? Maulana Ali Qadri: See...the use of such derogatory words for any religion is not approved by me or by anybody... Amish Devgan: Thanks. Maulana Qadri: It is necessary to respect the Guru of any religion. I believe it to be yours and it is a request from you also that do not use the word Islamic terrorism...because terror has no religion... xx xx &nbs....
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....t the impugned FIRs do not suffer from this jurisdictional defect. (ii) Defence of causing slight harm 14. 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 p....
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....that the right to speech was not to be treated as absolute, but subject to restrictions on the grounds like sedition, obscenity, slander, libel and interest of public order. If the State is denied power to restrict speech on the basis of content, it might produce debates informed by prejudices of the public that would marginalise vulnerable groups and deny them equal space in the society. The mode of exercise of free speech, the context and the extent of abuse of freedom are important in determining the contours of permissible restrictions. The Commission also felt that laying down of a definite standard might lead to curtailment of free speech; a concern that has prevented the judiciary from defining hate speech in India. However, this is not to deny that the courts while adjudicating each case have to inevitably apply an objective test in terms of the legislative provisions. This is an inescapable legal necessity to ensure certainty and to prevent abuse and misuse, as failure to do so would curtail and subjugate the right to free speech and expression to occasional whims and even tyranny of subjective understanding of the authorities. Difference between free speech and hate speec....
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....and non-discrimination have been termed non-derogatory values by the European Court of Human Rights in ascertaining the extent of free speech allowed under the Convention; speech propagating religious intolerance, negationism, homophobia etc. has been excluded from the ambit of Article 10 of European Convention of Human Rights and the importance of responsible speech in a multicultural society has been stressed by the court in several cases. The Law Commission report has noted that in recent years, the European Court of Human Rights has moved from a strictly neutral approach, wherein not every offensive speech was considered illegitimate, by holding that interference is not to be solely judged on legitimate aim test but also whether such interference was necessary in a democratic society. This moderation takes into account that affording protection to all kinds of speech, even offensive ones, many times vilifies the cause of equality. 18. We will now succinctly refer to the American position which discloses a strong preference for liberty over equality, and commitment to individualism, predicated on the belief that: ...Truth was definite and demonstrable and that ....
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....th time moved from the 'bad tendency test' i.e., prohibiting speech if it has tendency to harm public welfare, to the test of 'clear and present danger', Mr. Justice Holmes in Schenek v. United States, 249 U.S. 47 (52), has described the test as: "The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree." and to finally the test of 'imminent lawless action'. Mr. Justice Douglas in his concurring opinion in Brandenburg v. Ohio 395 U.S. 444 (1969) had adumbrated that the 'clear and present danger' precept in pronouncements during World War I and to check Marxism had moved away from the First Amendment ideal as in Dennis v. United States 341 U.S. 494 'not improbable' standard was followed. The 'imminent lawless action' test has three distinct elements, namely-intent, imminence and likelihood. In other words, the State cannot restrict and limit the First Amendment protection by forbidding or pros....
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....uality, as it places greater emphasis on cultural diversity and promotes the idea of ethnic mosaic. The Canadian Supreme Court in James Keegstra had upheld the criminal conviction of a high school teacher for anti-Semitic propaganda on the ground that it amounts to wilful promotion of hatred against a group identifiable on the basis of colour, race, religion or ethnic origin. It was observed as under: (1) seeking and attaining truth is an inherently good activity; (2) participation in social and political decision-making is to be fostered and encouraged; and (3) diversity in forms of individual self-fulfillment and human flourishing ought to be cultivated in a tolerant and welcoming environment for the sake of both those who convey a meaning and those to whom meaning is conveyed. The Canadian position, therefore, considers the likely impact of hate speech on both the targeted groups and non-targeted groups. The former are likely to be degraded and humiliated to experience injuries to their sense of self-worth and acceptance in the larger society and may well, as a consequence, avoid contact with members of the other group within the polity. The non-targeted member....
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....l overcome all falsehoods. (b) Self-fulfilment and autonomy, in a large part, come from one's ability to articulate and nurture an identity based on membership in a cultural or religious group. The extent to which this value furthers free speech should be modulated insofar as it advocates an intolerant and prejudicial disregard for the process of individual self-development and human flourishing. (c) The justification from participation in democracy shows a shortcoming when expression is employed to propagate ideas repugnant to democratic values, thus undermining the commitment to democracy. Hate propaganda argues for a society with subversion of democracy and denial of respect and dignity to individuals based on group identities. 25. The South African position regards dignity as paramount constitutional value and the law and the courts are willing to subjugate freedom of expression when the latter sufficiently undermines the former. The constitutional provision, therefore, enjoins the legislature and the court to limit speech rights and the exercise of those rights which deprive others of dignity. 26. The position in the United Kingdom has s....
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.... defined 'religious freedom' in individual terms and in August, 1789 adopted the declaration des Droits de l'Homme et du Citoy en, which declared-'no one may be disturbed for his opinions, even religious ones, provided that their manifestation does not trouble the public order established by the law'. In 1905, Declaration of Laicite, freedom of conscience, the freedom to believe or not believe, was enshrined in the Constitution. The principle recognises freedom to practice religion, in private or in public, as long as the manifestation of the practice does not disturb the peace. The State guarantees equality to all citizens regardless of their philosophical or religious conviction as all persons are born and remain free and equal in right. Everyone is free to express their own particular convictions and adhere to it. Laicite confederates and reinforces the unity of the nation by bringing citizens together by adhering to values of the republic which includes the right to accept differences. Declaration for Laïcité-Observatoire de la laicite (Republique Francaise) In accordance with the above principle, the French recognise and accept the right to offe....
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....e 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....
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....s Court in Virendra/K. Narendra. 31. Even so, in Ramji Lal Modi Section 295A of the Penal Code was interpreted punctiliously observing: 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... Import of Section 295A of the Penal Code, Ramji Lal Modi holds, is to curb speech made with 'malicious intent' and not 'offensive speech'. 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. Notably, this Court had already dismissed the Special Leave Petition and upheld Ramji Lal Modi's conviction Under Section 295A for having pu....
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....e two provisions strike the correct balance between individual fundamental rights and the interest of public order. For interpretation, the court should not only have regard to the literal meaning of the words of the statute but take into consideration the antecedent history of the legislation, its purpose and the mischief it seeks to suppress. 33. 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 ....
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.... sequitur it follows that the courts should moderate and control the ambit and scope of the penal provisions to remain within and meet the constitutional mandate. Interpretation and application that is distant and beyond the superior command of the permissible constitutional limitation vide Clause (2) to Article 19 is unacceptable. 35. The decision in Ramji Lal Modi and the later decision in Bilal Ahmed Kaloo, which had examined Sections 153A and 505(2) of the Penal Code, had primarily applied the 'Bad Tendency test' as propounded by the American jurists. In Dr. Ram Manohar Lohia, the Constitution Bench of five Judges, referring to the words 'in the interest of... public order' in Clause (2) to Article 19 had observed that order is a basic need in any organised society. It implies orderly state of society or community in which the citizens can peacefully pursue their normal activities of life. This is essential as without order there cannot be any guarantee of other rights. 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 smal....
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.... rejected on the ground that if the same is accepted it would destroy the right to freedom of speech. However, what is important is the finding that public order is synonymous with public safety and tranquillity, in the sense that the latter terms refer to the former. The terms refer to absence of disorder, involving breaches of local significance in contradiction to national upheavals affecting security of the State. Yet they have be serious enough like civil strife and not mere law and order issues. Further, the 'proximate nexus test' in the 'interest of public order' should be satisfied. 36. In Madhu Limaye v. Sub-Divisional Magistrate, Monghyr and Ors. (1970) 3 SCC 746 a seven Judge Constitution Bench of this Court has rejected challenge to the constitutional validity of Section 144 and Chapter VIII of the Code of Criminal Procedure, 1873 (sic 1973) holding that the impugned provisions properly understood were not in excess of the limits laid down in the Constitution for restricting the freedoms guaranteed Under Article 19(1) Clauses (a), (b), (c) and (d). The Constitution Bench was required to interpret Clauses (2), (3), (4) and (5) to Article 19 and whether....
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....and concerned with power with the State to free the society from the menace of serious disturbances of grave character, that is to say that the annoyance must assume sufficiently grave proportions to bring the matter within the interest of public order. Rejecting the contention that the language of Section 144 was overbroad, reference was made to Section 188 of the Penal Code to hold that mere disobedience of the order is not sufficient to constitute an offence; there must be in addition obstruction, annoyance, or danger to human life, health or safety or a riot or an affray for an offence to me made out under the penal provision. Thus, the offence Under Section 188 of the Penal Code is restricted and confined by the legislative mandate. The general order Under Section 144 is justified on the ground that it may be necessary when number of persons is so large that distinction between them and general public cannot be made without the risk mentioned in the section. A general order is thus justified, and if the action is too general, the order may be questioned by appropriate remedy provided in the Code of Criminal Procedure. 37. Recently, this Court in Shreya Singhal, accepting th....
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....easonableness is applicable to all cases. Reasonableness always has reference to evil sought to be remedied and requires examination of the proportion of the imposition. 39. In Shreya Singhal, to exposit the public order stipulation in Clause (2) of Article 19, reference was made to Arun Ghosh v. State of West Bengal (1970) 1 SCC 98 wherein the test as laid down in Dr. Ram Manohar Lohia was applied to hold that 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. Disturbance of public order is to be distinguished from the acts directed against individuals which do not disturb the society to the extent of causing general disturbance of public tranquillity. This was explained by way of examples: 3....Take for instance, a man stabs another. People may be shocked and even disturbed, but the life of the community keeps moving at an even tempo, however much one may dislike the act. Take another case of a town where there is communal tension. A man stabs a member of the other community. This is an act of a very different sort. Its....
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....asonable restrictions in appropriate cases. The ingredients of Article 19(2) of the Constitution are that: (a) The action must be sanctioned by law; (b) The proposed action must be a reasonable restriction; (c) Such restriction must be in furtherance of interests of the sovereignty and integrity of India, the 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. 38. At the outset, the imposition of restriction is qualified by the term "reasonable" and is limited to situations such as interests of the sovereignty, integrity, security, friendly relations with the foreign States, public order, decency or morality or contempt of court, defamation or incitement to an offence. Reasonability of a restriction is used in a qualitative, quantitative and relative sense. 39. It has been argued by the counsel for the Petitioners that the restrictions Under Article 19 of the Constitution cannot mean complete prohibition. In this context, we may note that the aforesaid contention cannot be sustained in li....
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....ly (iv) there needs to be a proper relation ('proportionality stricto sensu' or 'balancing') between the importance of achieving the proper purpose and the social importance of preventing the limitation on the constitutional right. Subsequently, the principle was reiterated in the Aadhaar judgment reported as Justice K.S. Puttasamy v. Union of India (2) (2017) 10 SCC 1. We need not elaborate on this principle in view of the limited controversy involved in the present case, albeit the formulation recognises the benefit and need for least intrusive measure when it comes to curtailment of fundamental rights and for this purpose the court can examine the reasonableness of the measures undertaken and whether they are necessary, in that there are no alternatives measures that can achieve the same purpose with a lesser degree of restriction. Secondly, there has to be proper proportionality or balance between the importance of achieving the proper measure and social importance of preventing the limitation on the constitutional right. 42. The expression 'reasonable restriction' has been elucidated in numerous decisions which have been quoted in Subramanian Swam....
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....f guarantees on the basic structure of human rights and impose negative obligations on the State not to encroach on individual liberty in its different dimensions. The rights under Part-III are wide ranging and comprehensive, though they have been categorised under different heads, namely, right to equality, right to freedom of expression and speech, right against exploitation, right to freedom of religion, cultural and educational rights, and right to constitutional remedies. Each freedom has a different dimension and merely because the limits of interference with one freedom are satisfied, the law is not free from the necessity to meet the challenge of another guaranteed freedom. Secondly, in Maneka Gandhi, it was held that the expression 'personal liberty' in Article 21 is of the widest amplitude and it covers a variety of rights which go on to constitute the personal liberty of a man, though some of them have been raised to the status of distinct fundamental rights and given additional protection Under Article 19. Article 21 does not exclude Article 19 or vice-versa, or for that matter the right to equality Under Article 14 of the Constitution. Thus, Part III of the Con....
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....dgments dwelling on balancing of fundamental rights when the right of a citizen comes in conflict with a different fundamental right also granted by the Constitution as each citizen is entitled to enjoy each and every one of the freedoms together and the Constitution does not prefer one freedom to another. In Ram Jethmalani and Ors. v. Union of India and Ors. (2011) 8 SCC 1 this Court has observed that rights of citizens Under Article 19(1) have to be balanced against the rights of citizens and persons Under Article 21 and the latter rights cannot be sacrificed as this would lead to detrimental consequences and even anarchy. Constitutional rights no doubt very important, possibly are not made absolute as they may come into conflict with each other and when competing they have to be qualified and balanced. In Noise Pollution (V), In Re. (2005) 5 SCC 733 it was observed that Article 19(1)(a) cannot be pressed into service for defeating the fundamental right guaranteed by Article 21 as if one claims to right to speech, the others have the right to listen or decline to listen. A person speaking cannot violate the rights of others of peaceful, comfortable and pollution free right guaran....
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....s sense does not refer to any particular level of honour or esteem as an individual, as in the case of defamation which is individualistic. The Supreme Court of the United States of America in Beauharnais v. Illinois 343 U.S. 250 (1952), while upholding conviction for hate speech, had emphasised that such speech should amount to group defamation which though analogous to individual defamation has been traditionally excluded from free speech protection in America. Loss of dignity and self-worth 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 affects an individual as a member of a group. 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. Manzar Sayeed Khan, taking note of the observations in Bilal Ahmad Kaloo, records that common features of Sections 153A and 505(2) being promotion of feeling of enmity, hatred or ill-will 'between different' re....
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....ation, and hateful speech: A primer of the legal landscape' elucidating on three distinct elements that legislatures and courts can use to define and identify 'hate speech', namely-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. By applying objective standards, one knows or has reasonable grounds to know that the content would allow anger, alarm or resentment in others on the basis of race, colour, creed, religion or gender. 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 subjective intent on the part of the speaker to target the group or person associated with the class/group. 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 ....
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....mi K. Rev. 733 (1998) has analysed 'hate speech' as a form of expression, through which the speaker primarily intends to vilify, humiliate or incite hatred against their targets. As explained below, '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. 51. The 'context', as indicated above, 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' is always plural for it 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. Variable context review recognises that all speeches are not alike. This is not only because of group affiliations, but in the context of dominant group hate speech against a vulnerable and discriminated group, and also the impact of hat....
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....hether alone or with others, then the aspect of 'who' and question of indulgence would lose significance and may be of little consequence. 52. Persons of influence, keeping in view their reach, impact and authority they yield on general public or the specific class to which they belong, owe a duty and have to be more responsible. They are expected to know and perceive the meaning conveyed by the words spoken or written, including the possible meaning that is likely to be conveyed. With experience and knowledge, they are expected to have a higher level of communication skills. It is reasonable to hold that they would be careful in using the words that convey their intent. The reasonable-man's test would always take into consideration the maker. In other words, the expression 'reasonable man' would take into account the impact a particular person would have and accordingly apply the standard, just like we substitute the reasonable man's test to that of the reasonable professional when we apply the test of professional negligence. In Bolam v. Friern Hospital Management Committee, [1957] 2 All E.R. 118, it was observed: "A doctor is not guil....
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....;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. In this context, 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. The object of criminalising the latter type of speech is to protect the dignity (as explained above) 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. Freedom to express and speak is the most important condition for political democracy. Law and policies are not democratic unless t....
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.... individuals leaving the tranquillity of the society undisturbed. The latter and acts excluded on application of the top of Clapham omnibus test are not covered. Therefore, anti-democratic speech in general and political extremist speech in particular, which has no useful purpose, if and only when in the nature of incitement to violence that 'creates', or is 'likely to create' or 'promotes' or is 'likely to promote' public disorder, would not be protected. 55. Sometimes, difficulty may arise and the courts and authorities would have to exercise discernment and caution in deciding whether the 'content' is a political or policy comment, or creates or spreads hatred against the targeted group or community. This is of importance and significance as overlap is possible and principles have to be evolved to distinguish. We would refer to one example to illustrate the difference. Proponents of affirmative action and those opposing it, are perfectly and equally entitled to raise their concerns and even criticise the policies adopted even when sanctioned by a statute or meeting constitutional scrutiny, without any fear or concern that they would be ....
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....h had promoted or had sought to promote feelings of enmity or hatred. The likelihood must be judged from healthy and reasonable standard thereby accepting the position that historical truth may be a relevant and important factor. However, the historical truth must be depicted without in any way disclosing or encouraging hatred or enmity between different classes or communities. In Lalai Singh Yadav and Anr. v. State of Uttar Pradesh 1971 Cri.L.J. 1773 (FB) (Allahabad), the Allahabad High Court had observed that the book written by Dr. B.R. Ambedkar throwing light on the oppression and exploitation of Dalits and suggesting conversion to Buddhism was couched in a restrained language and did not amount to an offence. Rational criticism of religious tenets, is acceptable as legitimate criticism, is not an offence for no reasonable person of normal susceptibilities would object to it. In Ramesh, challenge to the serial 'Tamas' was rejected on the ground that it was an instructive serial revealing an evil facet of history within permissible extent of examination even if it depicted pre-partition communal tension and violence. A hurt, which is a product of a benevolent intent, may....
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....actuality, be a subjective element, making it one person's relative truth over another's. Cultural value system, historical experiences, lived realities of social systems and hierarchies-all these are determinants in how an individual perceives the truth to be. George Bernard Shaw has said that our whole theory of freedom of speech and opinion for all citizens rests not on the assumption that everybody was right, but on the certainty that everybody was wrong on some point on which somebody else was right, so that there was a public danger in allowing anybody to go unheard. George Bernard Shaw, Socialism off Millionaires, 16(1901) Many so-called truths have been rectified and corrected because they were disputed scientifically or economically, socially and politically. One should not Rule out possibility of divergency between truth and popular belief or even situations that are described as epistemological problem of the 'post truth' era, which is not that people do not value truth, but some may believe and accept falsehoods. Joseph Blocher, 'Free Speech and Justified True Belief', Harvard Law Review, Vol. 133, No. 2, December 2019. Nevertheless, in many ways....
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....ed. Similarly, in paragraph 49, we have observed that a tolerant society is entitled to expect tolerance as they are bound to extend to others. The expression 'tolerance' is, therefore, important, yet defining it is problematic as it has different meanings. We need not examine the philosophies or the meanings in detail, and would prefer to quote Article 1 from the Declaration of Principles of Tolerance by the Member States of the United Nations Educational, Scientific and Cultural Organisation adopted in its meeting in Paris at the 28th session of the General Conference, which reads as under: Article 1-Meaning of tolerance 1.1 Tolerance is respect, acceptance and appreciation of the rich diversity of our world's cultures, our forms of expression and ways of being human. It is fostered by knowledge, openness, communication, and freedom of thought, conscience and belief. Tolerance is harmony in difference. It is not only a moral duty, it is also a political and legal requirement. Tolerance, the virtue that makes peace possible, contributes to the replacement of the culture of war by a culture of peace. 1.2 Tolerance is not conc....
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....ir views or activities that are themselves intolerant should be tolerated is answered by making evaluative judgment predicated on rational universal principles. According to Martin Packer, at least since Immanuel Kant and David Hume, morality has been seeing as needing to take the form of 'rational, universal principles' that would guide the autonomous individual. These principles would necessarily transcend the many dictates of specific societies and cultures; the dictates are contingent while morality and the good must be universally compelling. The test accepts rational argument principle to keep intolerant philosophies in check. Thus, tolerance is not to accept things that are better to overcome, Marjoka Van Doorn, the Nature of Tolerance and the Social Circumstances in Which it Emerges, Current Sociology Review, 2014, Vol. 62(6) 905-927 or when practices reflect intolerance within themselves, like disregard for human rights and principles of equality and fraternity. Further, there may even be unjustified religious beliefs in relation to morality, politics, origin of humanity, social hierarchies, etc. which should not be tolerated. Sam Hariss, The End of Faith The argum....
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....ained to use criminal force or violence or knowing it to be likely that the participants in such activity will use or be trained to use criminal force or violence, against any religious, racial, language or regional group or caste or community and such activity, for any reason whatsoever causes or is likely to cause fear or alarm or a feeling of insecurity amongst members of such religious, racial, language or regional group or caste or community, shall be punished with imprisonment which may extend to three years, or with fine, or with both. Offence committed in place of worship, etc.--(2) Whoever commits an offence specified in Sub-section (1) in any place of worship or in any assembly engaged in the performance of religious worship or religious ceremonies, shall be punished with imprisonment which may extend to five years and shall also be liable to fine. 61. In the present case, we are not concerned with Clause (c) to Sub-section (1) to Section 153A and hence we would not examine the same. Section 153A has been interpreted by this Court in Manzar Sayeed Khan and Balwant Singh and other cases. It would be, however, important to refer to the legis....
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....he paper in which the concerned Article was published, consideration of the person for whom it was written and the state of feeling between the two communities involved. In case the words used in the Article are likely to produce hatred, they must be presumed to be intended to have that effect unless the contrary is shown. The Bombay High Court in Gopal Vinayak Godse has observed that the intention to promote enmity or hatred is not a necessary ingredient of the offence. It is enough to show that the language of the writing is of the nature calculated to promote feelings of enmity or hatred, for a person must be presumed to intend the natural consequences of his act. The view expressed by the Bombay High Court in Gopal Vinayak Godse lays considerable emphasis on the words itself, but the view expressed in P.K. Chakravarthy and Devki Sharma take a much broader and a wider picture which, in our opinion, would be the right way to examine whether an offence Under Section 153A, Clauses (a) and (b) had been committed. The ordinary reasonable meaning of the matter complained of may be either the literal meaning of the published matter or what is implied in that matter or what is inferred ....
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....public tranquillity' in Clause (b) would mean ordre publique a French term that means absence of insurrection, riot, turbulence or crimes of violence and would also include all acts which will endanger the security of the State, but not acts which disturb only serenity, and are covered by the third and widest circle of law and order. Public order also includes acts of local significance embracing a variety of conduct destroying or menacing public order. Public Order in Clause (2) to Article 19 nor the statutory provisions make any distinction between the majority and minority groups with reference to the population of the particular area though as we have noted above this may be of some relevance. When we accept the principle of local significance, as a sequitur we must also accept that majority and minority groups could have, in a given case, reference to a local area. 65. Section 295A and Clause (2) of Section 505 of the Penal Code reads as under: 295-A. Deliberate and malicious acts intended to outrage religious feelings of any class by insulting its religion or religious beliefs.--Whoever, with deliberate and malicious intention of outraging the religious ....
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....with fine, or with both. The two provisions have been interpreted earlier in a number of cases including Ramji Lal Modi, Kedar Nath, Bilal Ahmed Kaloo. It could be correct to say that Section 295A of the Penal Code encapsulates of all three elements, namely, it refers to the content-based element when it refers to words either spoken or written, or by signs or visible representation or otherwise. However, it does not on the basis of content alone makes a person guilty of the offence. The first portion refers to deliberate and malicious intent on the part of the maker to outrage religious feeling of any class of citizens of India. The last portion of Section 295A refers to the harm-based element, that is, insult or attempt to insult religions or religious belief of that class. Similarly, Sub-section (2) to Section 505 refers to a person making publishing or circulating any statement or report containing rumour or alarming news. Thereafter, it refers to the intent of the person which should be to create or promote and then refers to the harm-based element, that is, likely to create or promote on the ground of religion, race, place of birth, residence, language, cast, etc., feeling....
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.... show and establish that the standard has been breached by leading evidence, which can be both oral and documentary. 'Promote' does not imply mere describing and narrating a fact, or giving opinion criticising the point of view or actions of another person-it requires that the speaker should actively incite the audience to cause public disorder. This active incitement can be gauged by the content of the speech, the context and surrounding circumstances, and the intent of the speaker. However, in case the speaker does not actively incite the descent into public disorder, and is merely pointing out why a certain person or group is behaving in a particular manner, what are their demands and their point of view, or when the speaker interviews such person or group, it would be a passive delivery of facts and opinions which may not amount to promotion. 68. The word 'attempt', though used in Sections 153-A and 295-A of the Penal Code, has not been defined. However, there are judicial interpretations that an 'attempt to constitute a crime' is an act done or forming part of a series of acts which would constitute its actual commission but for an interruption. An a....
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....principle, as applicable in the case of 'likely' would apply, except for the fact that for intervening reasons or grounds public disorder or violence may not have taken place. 69. 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 ab....
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....or impact was also taken into account. What is acceptable speech in one case, it could be well argued, should be acceptable in another, and therefore the ratio in Balwant Singh must be applied with caution as the decision had proceeded on failure of the prosecution. The 'who' factor as a variable had weighed with the court. Besides there was no impact or harm. 72. Manzar Sayeed Khan was a case wherein the Appellants had published a book titled 'Shivaji: Hindu King in Islamic India' authored by Prof. James W. Laine, a Professor of Religious Studies in Macalester College, United States of America, which had led to registration of FIR against the Indian Publisher and a Sanskrit scholar whose name had appeared in the acknowledgement of the book for having helped the author by providing him some information during the latter's visit to Pune. The primary reason according to us why the appeal was allowed and the proceedings arising from the FIR were quashed at the initial stage are reflected in paragraph 19 of the judgment which notes that the author was a well-known scholar who had done extensive research before publishing the book. Further, he had relied upon mate....
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....sable offences, subject to exceptions in which case a preliminary inquiry is required. The Petitioner has not contended that the present case falls under any of such exceptions. Conspicuously, there is a distinction between arrest of an Accused person Under Section 41 of the Code of Criminal Procedure and registration of the FIR, which helps maintain delicate balance between interest of the society manifest in Section 154 of the Code of Criminal Procedure, 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. The Constitution Bench referring to the decision of this Court in Tapan Kumar Singh reiterated that the FIR is not an encyclopaedia disclosing all facts and details relating to the offence. 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. He need not necessarily be an eye-witness. What is essential is that the information must disclose the commission of a cognisable offence and the information must provide basis for the police officer to suspect commission of the offence. Thus, at this....
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....o scrutinise the FIR/charge-sheet/complaint. In deciding whether the case is rarest of rare cases to scuttle the prosecution in its inception, it first has to get into the grip of the matter whether the allegations constitute the offence. It must be remembered that FIR is only an initiation to move the machinery and to investigate into cognizable offence. After the investigation is conducted (sic concluded) and the charge-sheet is laid, the prosecution produces the statements of the witnesses recorded Under Section 161 of the Code in support of the charge-sheet. At that stage it is not the function of the court to weigh the pros and cons of the prosecution case or to consider necessity of strict compliance of the provisions which are considered mandatory and its effect of non-compliance. It would be done after the trial is concluded. The court has to prima facie consider from the averments in the charge-sheet and the statements of witnesses on the record in support thereof whether court could take cognizance of the offence on that evidence and proceed further with the trial. If it reaches a conclusion that no cognizable offence is made out, no further act could be done except to qu....
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....tution on the ground that the Petitioner must be relegated to pursue equally efficacious remedies under the Code of Criminal Procedure, observing: 49. We hold that it would be inappropriate for the court to exercise its jurisdiction Under Article 32 of the Constitution for the purpose of quashing FIR 164 of 2020 under investigation at the NM Joshi Marg Police Station in Mumbai. In adopting this view, we are guided by the fact that the checks and balances to ensure the protection of the Petitioner's liberty are governed by the Code of Criminal Procedure. Despite the liberty being granted to the Petitioner on 24 April 2020, it is an admitted position that the Petitioner did not pursue available remedies in the law, but sought instead to invoke the jurisdiction of this Court. Whether the allegations contained in the FIR do or do not make out any offence as alleged will not be decided in pursuance of the jurisdiction of this Court Under Article 32, to quash the FIR. The Petitioner must be relegated to the pursuit of the remedies available under the Code of Criminal Procedure, which we hereby do. The Petitioner has an equally efficacious remedy available before the Hi....
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....es upon his apology, which as per the Respondents/informants is an indication or implied acceptance of his acts of commission. 79. Having given our careful and in-depth consideration, we do not think it would be appropriate at this stage to quash the FIRs and thus stall the investigation into all the relevant aspects. However, our observations on the factual matrix of the present case in this decision should not in any manner influence the investigation by the police who shall independently apply their mind and ascertain the true and correct facts, on all material and relevant aspects. Similarly, the competent authority would independently apply its mind in case the police authorities seek sanction, and to decide, whether or not to grant the same. Same would be the position in case charge-sheet is filed. The court would apply its mind whether or not to take cognisance and issue summons. By an interim order, the Petitioner has enjoyed protection against coercive steps arising out of and relating to the program telecast on 15.06.2020. Subject to the Petitioner cooperating in the investigation, we direct that no coercive steps for arrest of the Petitioner need be taken by the polic....
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.... are to the following effect: 28....The law concerning multiple criminal proceedings on the same cause of action has been analyzed in a judgment of this Court in T.T. Antony v. State of Kerala ("T.T. Antony"). Speaking for a two judge Bench, Justice Syed Shah Mohammed Quadri interpreted the provisions of Section 154 and cognate provisions of the Code of Criminal Procedure including Section 173 and observed: 20...under the scheme of the provisions of Sections 154, 155, 156, 157, 162, 169, 170 and 173 Code of Criminal Procedure, only the earliest or the first information in regard to the commission of a cognizable offence satisfies the requirements of Section 154 Code of Criminal Procedure. Thus, there can be no second FIR and consequently there can be no fresh investigation on receipt of every subsequent information in respect of the same cognizable offence or the same occurrence or incident giving rise to one or more cognizable offences. On receipt of information about a cognizable offence or an incident giving rise to a cognizable offence or offences and on entering the FIR in the station house diary, the officer in charge of a police station has to i....
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....the statutory power of investigation in a given case. In our view a case of fresh investigation based on the second or successive FIRs, not being a counter-case, filed in connection with the same or connected cognizable offence alleged to have been committed in the course of the same transaction and in respect of which pursuant to the first FIR either investigation is under way or final report Under Section 173(2) has been forwarded to the Magistrate, may be a fit case for exercise of power Under Section 482 Code of Criminal Procedure or Under Articles 226/227 of the Constitution. &n....
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....e Code of Criminal Procedure. In that context, this Court held: 23. Be that as it may, if the law laid down by this Court in T.T. Antony case is to be accepted as holding that a second complaint in regard to the same incident filed as a counter-complaint is prohibited under the Code then, in our opinion, such conclusion would lead to serious consequences. This will be clear from the hypothetical example given hereinbelow i.e. if in regard to a crime committed by the real Accused he takes the first opportunity to lodge a false complaint and the same is registered by the jurisdictional police then the aggrieved victim of such crime will be precluded from lodging a complaint giving his version of the incident in question, consequently he will be deprived of his legitimate right to bring the real Accused to book. This cannot be the purport of the Code. These principles were reiterated by a two judge Bench of this Court in Babubhai v. State of Gujarat. Dr. Justice B.S. Chauhan observed: 21. In such a case the court has to examine the facts and circumstances giving rise to both the FIRs and the test of sameness is to be applied to find out whe....
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....orded by an officer in charge of a police station. It sets the criminal law in motion and marks the commencement of the investigation which ends up with the formation of opinion Under Section 169 or 170 Code of Criminal Procedure, as the case may be, and forwarding of a police report Under Section 173 Code of Criminal Procedure. It is quite possible and it happens not infrequently that more informations than one are given to a police officer in charge of a police station in respect of the same incident involving one or more than one cognizable offences. In such a case he need not enter every one of them in the station house diary and this is implied in Section 154 Code of Criminal Procedure. Apart from a vague information by a phone call or a cryptic telegram, the information first entered in the station house diary, kept for this purpose, by a police officer in charge of a police station is the first information report--FIR postulated by Section 154 Code of Criminal Procedure. All other informations made orally or in writing after the commencement of the investigation into the cognizable offence disclosed from the facts mentioned in the first information report and entered in the ....
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....inal Procedure 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 Code of Criminal Procedure. 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. We have clarified the aforesaid position to avoid any doubt or debate on the said aspect. 85. In view of our findings, we accept the prayer made in the last amended writ petition and transfer all FIRs listed at serial No. 2 to 7 in paragraph ....