New Delhi: The Supreme Court’s two-judge bench comprising Justices A.M. Khanwilkar and Sanjiv Khanna, in a judgment authored by the latter, dealt with the question of what constitutes hate speech rather elaborately. Such a lengthy examination of the merits of the case at the pre-trial stage by the apex court is hard to defend, especially when the bench makes it clear that it should not influence either the investigation or the trial. Yet, the bench makes a convincing case for denying Devgan’s plea for quashing of the FIRs filed against him for his alleged derogatory remarks against Sufi saint Moinuddin Chishti.
The bench does so despite its agreement with the recent decision rendered by another two-judge bench of the court in Arnab Ranjan Goswami. In Goswami, the court, in almost identical circumstances, had refused to examine the question whether the proceedings arising out of the FIR filed against the petitioner should be quashed under Article 32 of the constitution on the ground that he must be relegated to pursue equally efficacious remedies under the CrPC before the high court.
“We should not be construed as holding that a petition under Article 32 is not maintainable. But when the High Court has the power under Section 482 (CrPC), there is no reason to by-pass the procedure under the CrPC…There is a clear distinction between the maintainability of a petition and whether it should be entertained,” the bench in Goswami held.
Yet, the bench in Devgan noted that detailed arguments had been addressed by both sides on maintainability and merits of the FIRs in question and, therefore, dealt with by the court and rejected at this stage. “We do not, in view of this peculiar circumstance, deem it appropriate to permit the petitioner to open another round of litigation (before the high court); therefore, we have proceeded to answer the issues under consideration.”
Devgan argued that criminal proceedings arising from the impugned FIRs ought to be quashed as these FIRs were registered in places where no ‘cause of action’ arose. The bench rejected the contention because Section 179 CrPC provides that an offence is triable at the place where an act is done or its consequence ensues. The debate show hosted by Devgan was broadcast on a widely viewed television network. The audience, including the complainants, were located in different parts of India and were affected by his utterances; thus, the consequence of his words ensured in different places, including the places of registration of the impugned FIRs, the bench reasoned.
Clause (1) of Section 156 of the CrPC provides that any officer in-charge of a police station may investigate any cognisable case, which a court having jurisdiction over the local limits of such station would have the power to inquire into or try. A conjoint reading of Sections 179 and 156(1) of the CrPC make it clear that the impugned FIRs do not suffer from this jurisdictional defect, the bench held.
Defence of causing slight harm
Devgan then relied upon the defence of trifle under Section 95 of the IPC. Saying that the bench is not inclined to entertain this defence at this stage, it pointed out that 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. 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,” the bench held.
Interpreting the case law on Section 153A IPC, the bench held that deliberate and malicious intent is necessary and can be gathered from the words itself – satisfying the test of top of Clapham omnibus, the ‘who’ factor – person making the comment, the targeted and non targeted group, the context, the occasion factor – the time and circumstances in which the words or speech was made, the state of feeling between the two communities, etc. and the proximate nexus with the protected harm to cumulatively satiate the test of hate speech. Good faith and no legitimate purpose test would apply, as they are important in considering the intent factor, the bench explained.
Interpreting “public tranquility” in clause (b) of Section 153A, the bench said it means 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.
The bench observed:
“We must act with the objective of 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. 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.”
Why case law could not help Devgan
In at least four cases, Manzar Sayeed Khan, Mahendra Singh Dhoni, Ramesh S/o Chhotalal Dalal v Union of India, as well as Balwant Singh, the Supreme Court had at the initial stage itself quashed the proceedings arising out of the FIR. The bench in Devgan explained why these cases could not be of any assistance to him in achieving a similar result.
In Balwant Singh, it was observed that the appellants were never leading a procession or raising slogans with the intent to incite people, indicating that the court took into account the ‘who’ factor as the appellants were unknown and inconsequential. This is of consequence as far as Section 153A of the Penal Code is concerned. Both the content and context, given the occasion, were highly incriminating and possibly warranted conviction, but as per paragraphs 10 and 11, the court was not convinced that the prosecution witnesses had spoken the whole truth and what slogan(s) was/were actually shouted. The decision in Balwant Singh had thus proceeded on failure of the prosecution.
In Manzar Sayeed Khan, the appellants had published a book titled Shivaji: Hindu King in Islamic India authored by James W. Laine, a professor of religious studies in Macalester College, US, which had led to the registration of an 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. In Paragraph 19, it was observed that the author was a well-known scholar who had done extensive research before publishing the book. Further, he had relied upon material and records at Bhandarkar Oriental Research Institute (BORI), Pune. It was highly improbable to accept that any serious and intense scholar like the author would have any desire or motive to involve himself in promoting or attempt to promote any disharmony between communities, castes or religions within the state. Good faith and (no) legitimate purpose principle was effectively applied.
These principles were also applied by the court in Ramesh, holding that the television serial Tamas did not depict communal tension or violence to fall foul of Section 153A of the IPC and/or was the serial prejudicial to national integration to fall under Section 153B of the IPC. Reliance was also placed on the test of ‘Clapham Omnibus’.
Mahendra Singh Dhoni was a case in which prosecution under Section 295A was initiated by filing a private complaint on the ground that the photograph of the well-known cricketer, as published in the magazine, was with a caption ‘God of Big Things’. It was obvious that prosecution on the basis of content was absurd and too farfetched by any standards even if we ignore the intent or the hurt element, the bench explained.
Taking note of Devgan’s apology, the bench also referred to respondents’ submission that it is an indication or implied acceptance of his acts of commission. The bench observed:
“It is apparent that Devgan was an equal co-participant, rather than a mere host. The transcript, including the offending portion, would form a part of the ‘content’, but any evaluation would require examination and consideration of the variable ‘context’ as well as the ‘intent’ and the ‘harm/impact’. These have to be evaluated before the court can form an opinion on whether an offence is made out. The evaluative judgment on these aspects would be based upon facts, which have to be inquired into and ascertained by police investigation. Variable content, intent, and the harm/impact factors are factually disputed by Devgan.”
The legal bar against institution or continuance of the prosecution will arise only if there is requirement of prior sanction; or where the allegations made in the FIR or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused; or where the allegations in the FIR do not disclose a cognisable offence; or where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of who no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused, the bench elucidated.
Another qualifying category in cases where charge-sheet is filed would be those where allegations against the accused do constitute the offence alleged, but there is either no legal evidence adduced in support of the case or the evidence adduced clearly or manifestly fails to prove the charge. “Application of these principles depends on factual matrix of each case. Strict and restricted as the requirements are, they are at this stage not satisfied in the present case,” the bench concluded.
The bench, however, found merit in Devgan’s plea – also conceded by the respondents – that all the FIRs registered at different places against him for the same alleged offence could be transferred to Dargah police station, Ajmer, Rajasthan, where the first FIR was registered. The bench did not find any good ground or special reason to transfer the FIRs to Noida, Uttar Pradesh. The bench also granted Devgan’s third prayer for security to himself and his family based on the threat perception by the Uttar Pradesh and Rajasthan governments. The bench granted Devgan interim protection against arrest subject to his joining and cooperating in the investigation.