New Delhi: Publishing an incorrect statement that a leader is dead when he or she is alive – as a man in Goa did last week when he said in Facebook that chief minister Manohar Parrikar had passed away in hospital – is not analogous to falsely shouting fire in a crowded theatre. The latter, a constitutional doctrine espoused by Justice Oliver Wendell Holmes Jr. of the United States Supreme Court in 1919 in Schenck v United States, can be best understood in his own words: “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.”Although Holmes is credited with authoring the most-cited phrase from a Supreme Court opinion, Peter Irons, who wrote A People’s History of the Supreme Court: Men and Women Whose Cases and Decisions Have Shaped our Constitution (1999) viewed it with scepticism. He wrote: “Holmes employed an arresting illustration of unprotected speech, but his sentence only served to inflame the reader against Schenck and to view him as inciting panic.”In 1917, Charles J. Schenck, general secretary of the U.S. Socialist Party in Philadelphia, prepared a leaflet, as part of the campaign against the Conscription Act. Holding Schenck guilty of obstructing military recruitment, Holmes, who wrote the Court’s unanimous opinion, reasoned that the government was not required to prove that the leaflet had induced any draftee to refuse induction. Simply showing “the tendency and the intent” of the leaflet to accomplish this aim was enough, he said.Asking what relevance “falsely shouting fire in a crowded theatre” had for Schenck’s leaflet, which made no false claims, but only appealed to assert one’s rights, Irons explains in his book, how Holmes later revised his view. Among other flaws in that doctrine, Irons pointed out that those who cite the “shouting fire” phrase, most often forget to include the “falsely” qualifier.Last week, the Goa police, who took action against the author of a Facebook post, Kenneth Silveira, for falsely writing that he heard that the ailing Goa chief minister Manohar Parrikar is dead, accused him of being guilty under a little-used provision in the Indian Penal Code: Section 505.Section 505 of the Indian Penal Code (IPC) seeks to punish authors of statements conducive to public mischief. But it has several safeguards to prevent its misuse. Thus the offence of making and publishing a rumour or alarming news is not complete, unless the accused has an intention to incite mutiny by the defence forces, or anyone to commit any offence against the State or any class or community.Secondly, the alleged rumour will attract rigours of this provision, if it leads to feelings of enmity, hatred or ill-will between different communities, based on religion, race, language or region, and not otherwise.The action of the crime branch of the Goa police in first arresting and later obtaining a two-day police custody for Silveira for posting a careless post, that said “Parrikar is no more”, is atrocious, and smacks of complete ignorance of law. The crime branch has reportedly claimed before the Judicial Magistrate of First Class (JMFC) that the 35-year-old Silveira had posted on his Facebook page, fake information about the chief minister Manohar Parrikar’s “death” as “revenge” for losing the 2017 assembly by-polls to him. The JMFC granted bail to Silveira on Friday on a bond of Rs 10,000.Silveira had contested the by-elections held in the Panaji constituency, which Parrikar had won by a wide margin. Parrikar, who had resigned as the Union defence minister, to assume office as the chief minister, was not a member of the Goa assembly, and had to become a member within six months of swearing-in. The crime branch has also purportedly justified the custody of Silveira, because it is in the process of tracking down all Facebook groups and members who have links to him.“The accused has revengefully used the social media to post such ill-feelings amongst the public”, police inspector Rajan Nigalye, reportedly claimed in his application for police custody of Silveira, filed before the JMFC, Vijayalaxmi Shivolkar.After visitors to his Facebook page alerted him about the inaccuracy of the post, Silveira accepted and published the correction. This must have brought the controversy to a close, but he was accused of offences under Section 505 IPC. The FIR against Silveira was filed by the crime branch, following a complaint lodged by BJP Panaji unit chief, Deepak Mhapshekar.In the absence of a regular medical bulletin on Parrikar, who is undergoing treatment in the United States, can the users of social media be accused of an offence under Section 505, merely because they were checking the veracity of a rumour as in this case?Parrikar, according to the chief minister’s office, has been suffering from “mild pancreatitis”, but his absence from his office, for nearly two months, because of his treatment, first in Mumbai and later in New York, has led to speculation about his actual health condition, in the absence of periodical update about his treatment by the state Government.Silveira was arrested under Section 505 (1) of the IPC, according to which whoever makes, publishes or circulates any statement, rumour or report, shall be punished with imprisonment which may extend to three years, or with fine, or both.The ingredients of offence under this provision include first and foremost, mens rea of the accused, to commit the offence. Second, the alleged offence must, in all likelihood, cause any officer, soldier, sailor or airman in the Army, Navy or Air Force of India to mutiny or otherwise disregard or fail in her duty as such. In the alternative, the alleged offence must cause, fear or alarm to the public, whereby any person may be induced to commit an offence against the State or against the public tranquillity. The provision may also be invoked if the accused has an intention to incite or likely to incite any class or community of persons to commit any offence against any other class or community.Sub-clause (2) of Section 505 deals with the offence of spreading rumour or alarming news with intent to create or promote feelings of enmity, hatred or ill-will between different religious, racial, language or regional groups or castes or communities. Sub-clause (3) of Section 505 deals with the same offence, if committed in any place of worship or in any assembly engaged in the performance of religious worship or religious ceremonies, and increases the maximum term of imprisonment to five years with fine.However, Section 505 has an exception which says that it does not amount to an offence, if the accused has reasonable grounds for believing that such statement, rumour or report is true and makes, publishes or circulates it in good faith and without any such intent as aforesaid.Kenneth Silveira, who was arrested by the Goa police for sharing a post on Facebook that claimed that the chief minister was dead. Credit: Facebook/ Kenneth SilveiraA mere threat which causes no alarm to the complainant does not constitute an offence under the section. Inadvertent publication of news regarding the death of a leader, can hardly be said to be a threat, let alone having caused any alarm to anyone, including the complainant.The Supreme Court has held in Balwant Singh v State of Punjab (1995) that mens rea is a necessary ingredient for the offence under Section 153A of IPC, a similar provision which makes the promotion of enmity between different groups, and doing acts prejudicial to maintenance of harmony, an offence. Mens rea is an equally necessary postulate for offences under Section 505(2) also as can be discerned from the words “with intent to create or promote or which is likely to create or promote” as used in that sub-section, the Gujarat high court has ruled in a case in 2015.The main distinction between the two offences is that while publication of the words or representation is not necessary under the former (153A), such publication is sine qua non under Section 505. The words “whoever makes, publishes or circulates” used in the setting of Section 505(2) cannot be interpreted disjunctively but only as supplementary to each other. If it is construed disjunctively, anyone who makes a statement falling within the meaning of Section 505 would, without publication or circulation, be liable to conviction. Although Silveira published the statement, it is debatable whether he was also its maker, as he was merely conveying what he heard from someone else, which later turned out to be false, and which he has accepted.The common feature in both the sections being promotion of feeling of enmity, hatred or ill-will “between different” religious or racial or language or regional groups or castes and communities, it is necessary that at least two such groups or communities should be involved. Merely inciting the feeling of ill-will in one community or group without any reference to any other community or group cannot attract either of the two sections, Supreme Court had held in another case (Bilal Ahmed Kaloo v State of Andhra Pradesh, 1997).The Gujarat high court, while finding the well-known Patidar leader, Hardik Patel, not guilty under Section 505, held in 2015 as follows:“Although it could be said that the members of the Patidar Patel community have been provoked, but such provocation has nothing to do with any other religion, race or linguistic or regional group or community. The police force of the State cannot be brought within the purview of the term “community”. The FIR so far as the offence punishable under sections 153A, 505(2) and 506 of the IPC is concerned, is ordered to be quashed.” (Gujarat high court in Hardik Bharatbhai Patel v State of Gujarat, October 27, 2015)The Supreme Court has held that to prove the offence under Section 505 (1)(c) of IPC, the prosecution must satisfy the following conditions:That the accused made, published or circulated the statement, rumour or report, in question;That she did so with intent to incite, or that the act was likely to incite some class or community or persons to commit offences against some other class or community.“Mechanical order convicting a citizen for offences of such serious nature like sedition and to promote enmity and hatred etc. does harm to the cause. It is expected that graver the offence, greater should be the care taken so that the liberty of a citizen is not lightly interfered with”, the Supreme Court held in its order in Bilal Ahmed Kaloo v State of Andhra Pradesh, in 1997.In the instant case, Silveira not only had no intention to create panic among the people of Goa by publishing an incorrect news about the chief minister’s death, only to correct it immediately once it was brought to his notice, but his Facebook post could hardly be said to have a tendency to provoke one group against another. If Silveira had intended to post ill-feelings among the public, he did not incite them to violence against any other group, so as to satisfy the requirement of Section 505.Besides, even if the police’ claim that the accused had “revengefully used the social media to post such ill-feelings among the public” is to be taken at face value, it is not clear what ill-feelings were intended to be created among the public, by an incorrect publication of news declaring a leader dead, and how it would have helped the accused to satisfy his revenge, if at all he had any such feelings.Furthermore, how the Goa police believes that Section 505 of IPC could be invoked to punish such “revengeful use of social media to create ill-feelings among the public” is a mystery.Like the irrelevance of the doctrine of `falsely shouting fire in a crowded theatre’ in the Schenck v US, the Goa police may well ask themselves about the relevance of Section 505 IPC in their ill-advised action against Silveira.