2020 SCC OnLine SC 994
FACTS:
“Paradox of toleration is that if we extend unlimited toleration even to those who are intolerant, if we are prepared to defend a tolerant society against the onslaught of the intolerant, then the tolerant will be destroyed and tolerance with them. Thus, held, a tolerant society is entitled to expect tolerance as it is bound to extend it to others.”
In the case of Amish Devgan v. Union of India & Ors., the Supreme Court of India conducted an extensive examination of the definition of hate speech within the Indian legal context, comparing it with the legal frameworks in liberal-democratic countries such as the United States, the United Kingdom, and Canada. The Court distinguished between the fundamental right to freedom of speech and expression under Article 19(1)(a) of the Indian Constitution and the legal definitions and criminalizations of hate speech within India’s legal system. It acknowledged that a single, uniform definition of hate speech is not feasible.
This case arose from a writ petition filed under Article 32 by Amish Devgan, a television journalist, seeking to annul seven FIRs (First Information Reports) lodged against him for allegedly making offensive remarks about a revered Sufi saint. In a similar case, Arnab Ranjan Goswami, the Supreme Court declined to entertain a writ petition, emphasizing that remedies under Section 482 of the Criminal Procedure Code (Cr.P.C) before the High Court should not be bypassed. However, in Devgan’s case, the Court decided to address the petition’s questions due to the detailed arguments on its maintainability and the merits of the FIRs.
The judgment did not address whether Devgan’s statements constituted hate speech but rather focused on why the FIRs could not be annulled at the pre-investigation stage. The Supreme Court made notable observations about the balance between freedom of speech and the protection of equality under the law. It introduced a new constitutional standard by applying a test based on the perspective of a ‘reasonable, courageous, strong-minded person’ to assess whether speech incites public disorder. This test, while potentially enhancing the protection of freedom of speech, could also pose challenges to maintaining equality before the law and might create uncertainties in the application of constitutional standards on free speech.
On June 15, 2020, during a televised debate on the Places of Worship (Special Provisions) Act, 1991, Devgan allegedly made disparaging comments about the esteemed Sufi saint Moinuddin Chishti, calling him a ‘terrorist intruder’. Following these remarks, seven FIRs were filed under various sections of the Indian Penal Code and the Information Technology Act, with death threats reported against Devgan. Devgan issued an apology on June 17, 2020, clarifying the statements as a mistake.
In response, Devgan filed a writ petition on June 22, 2020, seeking several reliefs, including the quashing of the FIRs, transferring and consolidating the FIRs to his residence in Noida, and prohibiting any coercive actions against him while ensuring adequate security for himself and his family.
ISSUES RAISED
The Supreme Court, comprising Justice Sanjiv Khanna and Justice A.M. Khanwilkar, considered three central issues:
- Whether the multiple FIRs should be quashed?
- Whether the FIRs were valid?
- Whether the FIRs could be consolidated and transferred?
CONTENTIONS OF THE PARTIES
BY THE APELLANT:
The appellant argued that the filing of multiple FIRs for the same alleged offense infringes upon his fundamental right to freedom of speech and expression as guaranteed by Article 19 of the Indian Constitution. He asserted that these FIRs, which are based on his remarks made during a television broadcast, represent a violation of his constitutional rights. The appellant emphasized that his intent was not to incite religious discord or provoke hostility against the Muslim community. Instead, he claimed that his comments were made due to negligence and carelessness, not with the deliberate intention to commit an offense. Consequently, he argued that his actions should not be subject to the penal provisions under Sections 153A, 295A, and 505(2) of the Indian Penal Code (IPC) of 1860, or Section 66-F of the Information Technology Act, 2000.
The appellant contended that his statements were trivial and did not constitute serious harm or offense. He suggested that such minor infractions should be addressed under Section 95 of the IPC, which deals with trivial offenses, rather than the more severe charges invoked against him. To support his position, the appellant cited the precedents set in Arnab Ranjan Goswami v. Union of India (2020) and Balwant Singh & Anr. v. The State of Punjab (1975). He argued that these cases provide relevant legal principles that should be considered in evaluating the FIRs against him
BY THE DEFENDANT:
The state governments of Rajasthan, Maharashtra, Telangana, and Uttar Pradesh contested the appellant’s justifications, arguing against the dismissal of the multiple FIRs. They maintained that the appellant has a recurring pattern of making inflammatory statements, suggesting that his recent comments were not an isolated incident but part of a broader trend. The respondents highlighted that the petitioner’s repetition of the term “Chisti” three times during the debate was intentional, rather than an inadvertent mistake, thereby implying a deliberate effort to offend. They argued that this timing indicated the petitioner’s lack of genuine remorse and a tendency to address controversies only when legally compelled.
The respondents also emphasized that while Article 19 of the Indian Constitution guarantees freedom of speech, this right is not absolute and is subject to reasonable restrictions. They argued that the petitioner’s statements violated these restrictions, which are intended to prevent the incitement of hatred and the disturbance of public peace. The comments made by the appellant, according to the respondents, had the effect of stirring up religious sentiments and causing discord between Hindus and Muslims. Thus, they asserted that the FIRs were justified as they aimed to address the breach of public order and ensure accountability for the propagation of hate speech.
RATIONALE
A critical aspect in interpreting the underlying reasoning of a judgment involves a thorough examination of global legal approaches to offenses such as hate speech and the offense of outraging religious sentiments. Additionally, understanding the legislative framework of Article 19 of the Indian Constitution, including its limitations, is crucial. The court referenced the case of Pravasi Bhalai Sangathan v. Union of India (2014), which highlighted recommendations for new legislation on hate speech. The court initially reviewed legal provisions from countries like the UK, USA, Germany, Canada, and France, noting that each country imposes certain restrictions on freedom of speech to balance individual rights with community interests.
Following this comparative analysis, the court turned to Indian jurisprudence, considering laws related to the criminalization and repudiation of religious beliefs. It emphasized the need to balance fundamental rights with freedom of speech, as illustrated in Ramji Lal Modi v. State of U.P. (1975) and Maneka Gandhi v. Union of India (1978), though these precedents did not aid the petitioner in quashing the FIRs.
The court sought to distinguish between free speech and hate speech. While free speech allows individuals to express dissent, hate speech involves derogatory or offensive remarks intended to incite hatred against specific communities. The objective of criminalizing hate speech is to protect national dignity and peace.
The court reviewed the legislative basis for the seven FIRs filed against the petitioner and decided that while the complaints should be treated as claims, they would be consolidated and addressed together at the location of the first FIR. The court rejected the petitioner’s argument that the offense was trivial and merely negligent, noting that the true nature of the offense would be determined by legal authorities in due course.
DEFECTS IN LAW
- The legal principle of equal protection and the prohibition of religious discrimination have not been effectively observed, raising concerns about how a member of one community can disparage revered figures of another community without consequence.
- Article 19(1) of the Constitution provides for freedom of speech and expression, but this right is circumscribed by the need to avoid harm or defamation to others. The case at hand illustrates a disconnect between this fundamental right and its application in practical contexts.
- Even negligent or careless remarks about a revered figure can constitute hate speech, endangering public safety. This highlights a deficiency in addressing the potential risks associated with such statements.
- The current legal framework lacks clear provisions for criminalizing hate speech prior to the issuance of derogatory and inflammatory statements, indicating a gap in the law regarding the prevention and punishment of such conduct.
INFERENCE
Criminal liability for insults to religion only applies when such insults are made with deliberate and malicious intent to outrage religious feelings. Unintentional or careless remarks, absent of such intent, do not constitute criminal hate speech. Criticism of government actions, regardless of its harshness, falls within the fundamental right to freedom of speech and expression and does not warrant penal action. Political speech is protected to foster democracy, and false accusations alone do not amount to criminal hate speech. The state’s security, public order, and law and order are distinct, with state security involving threats of significant national impact, and public order addressing broader community disturbances. Political figures and influential individuals are held to a higher standard due to their greater impact, though they still enjoy the same fundamental rights as other citizens. Individual dignity and national unity are interconnected; speech that promotes divisiveness or undermines unity must be addressed by law. Courts should consider historical context and avoid penalizing speech that reflects past grievances. Tolerance requires deliberate restraint and self-control but is not synonymous with permissiveness or neutrality.
As rightly penned by Justice Sanjeev Khanna “To ensure maximisation of free speech and not create ‘free speaker’s burden’, the assessment should be from the perspective of the top of the reasonable member of the public, excluding and disregarding sensitive, emotional and atypical. (…) This does not mean exclusion of particular circumstances as frequently different persons acting reasonably will respond in different ways in the context and circumstances. This means taking into account peculiarities of the situation and occasion and whether the group is likely to get offended. At the same time, a tolerant society is entitled to expect tolerance as they are bound to extend to others”
In a nutshell , it advocates for a balanced approach to assessing speech, recognizing both the importance of protecting free expression and the need to consider its potential effects on different groups within society.
BY ADITI SRIVASTAVA
DELHI METROPOLITAN EDUCATION COLLLEGE , GGSIPU