FACTS
Amish Devgan, a well-known Indian news anchor and the owner of several channels – STAR News, Premium News, and Live India faced a serious legal headache after a number of comments he made on the air on June 15, 2020. In this broadcast, Devgan used highly abusive and derogatory four words regarding Pir Hazrat Moinuddin Chishti which is a Sufi saint of very high value and revered as “Pir Hazrat Khwaja Gareeb Nawaz”. Further, he said ‘Aakrantak Chishti aya lootera Chishti aya’ meaning ‘terrorist Chishti arrived, robber Chishti arrived’, ‘uske baad dharam badle’ meaning ‘and then religion transformed’.
These statements were quite inflammatory to most people especially the Muslims as Gareeb Nawaz is regarded a holy figure in Islam. The remarks did not take time to trigger lots of anger especially on the social media platforms whereby Devgan received threats of violence. The backlash was immediate with FIRs filed against him in Ajmer and Hyderabad on various charges that included hate speech, defamation and outraging religious sentiment under various provisions of the IPC. However, in defence of his statements, Devgan once supported them but then he had to give an official public apology in the social media saying that the comments had been made by him without any intention of demeaning any persons’ reputation.
The legal provisions under which Devgan was charged include
• Section 153A: Stirring up hatred between different sections of the population based on religion, race, place of birth, residence, language, etc. and any acts which are prejudicial to the preservation of peace.
• Section 295A: It means the actions done intentionally and with a purpose to offend the religious sentiments of any class of persons by insulting their religion or regarding their beliefs.
•Section499: Defamation. Defamation is a false communication damaging a person’s reputation or character.
• Section 505(2): Statements which create or encourage hostility between classes.
These charges are as follows as they relate to religious conflict in India – a country, which has seen its fair share of inter-religious conflict. The case highlighted educative question as to how much freedom of speech is permissible regarding the media broadcasts and the role of leaders in preserving the peace of the society.
2. ISSUES RAISED
The case raised several critical legal questions that needed to be addressed by the court:The case raised several critical legal questions that needed to be addressed by the court:
• Issue 1: Whether Amish Devgan speaking against Pir Hazrat Moinuddin Chishti has incurred to the provisions of Section 153A of the IPC or not?
• Issue 2: Whether Section 295A of IPC covers the act of speaking against a respected saint or Islam.
• Issue 3: If yes, the prerequisites of the suit of defamation under Section 499 of the IPC against Devgan for his comments.
• Issue 4: If there is a legal implication for Devgan to be prosecuted under the Section 505(2) of the IPC in issuing statements that poses threats to cause public alarm or affect the public order.
• Issue 5: Whether the apology tendered by Devgan after the match has any legal legal remedy in reducing his responsibility under the said sections.
3. CONTENTIONS
Prosecution’s Arguments:
The prosecution said Devgan went a step ahead to crossing the line of being abusive while they also spoke of hate speech as provided under section 153A of the IPC. They alleged that naming people as terrorist/robber to a byte where religious sentiments were portrayed were in fact trying to vitiate religious harmony especially between Hindus & Muslims. The prosecution has argued that the broadcast training went to thousands of people and in light of the nature of the comments, provoked into violence.
As for Section 295A, the prosecution continued that Devgan’s statements were and intended to destabilize the religious feelings of Muslims who revere Pir Hazrat Moinuddin Chishti. The opposition demanded action against Devgan saying that the multiple FIRs and the large-scale public outcry were the result of his words. The prosecution further submitted that the above was not a act of carelessness or a slip of the tongue but a premeditated event with the view of causing an affront to a certain religious sector.
Last, under Section 505(2), the prosecution stated that Devgan`s broadcast was likely to lead to public disturbance and enmity between the different religious groups. The two underscored the point that such statements were made in a public domain meaning that the viewers would likely take them seriously and thus, fueling the horn of sectarianism.
Defense’s Arguments:
On the same, defense argument brought forward the fact that there was no malice in words uttered by Devgan. It was further pointed out that the use of Pir Hazrat Moinuddin Chishti’s name was an act of ommision, meaning that Devgan had intended to refer to Alauddin Khilji an invader in India. The defense argued that Devgan did not incite for animosity to provoke an act of enmity and also did not offend the religious sentiments but the statements were made due to a slip of tongue during a live show.
While dealing with the charges under Section 153A, the defense stated that for a statement to be classified as hate speech it should demonstrate that the intention of the speaker was that his words would stir up others to violence or create enmity. They argued that this was not concerning Devgan who as soon as he realizing his error tendered a public apology. The defense also raised a political rational which was focused on the fact that the FIRs were made because it was politically inconvenient for Pakistan to have such an influential member of the media community.
As far as the charges under Section 295A are concerned, the defense pointed to the fact of a lack of mens rea, or the malicious intent, which is an essential ingredient of the particular offense under the said section. This they wanted taken into consideration and that was the apology he tendered later showing that he knew he was in the wrong but he did not have any intention of harming anybody.
4. RATIONALE
The primary methodology of the Supreme Court used in this interaction was based on the examination of the specified sections of the IPC and the necessity to apply the intent in the establishment of the criminal responsibility.
Section 153A: The court observed that it sections 153A contemplates the offense of promoting enmity between different groups on grounds of religion, race etc., and that the intention to commit disturbances of public peace is an essential ingredient. The court took a look into the evidence in determining whether Devgan had the deliberate intention of inciting conflict between religious factions. It was clear that the remarks made by the appellant were provocative and degrading to the complainant but what was to be decided was whether such remarks came within the purview of hate speech as provided for under this section.
Section 295A: Regarding a charge under Section 295A, as for the court, the intention of the accused has to be malicious and with the intention to cause outrage to religious feelings. The court went on assessing whether the statements by Devgan were made with such a motive or if they were made out of a mishap as argued by the defense counsel.
Section 499: While dealing with the defamation charges, the Supreme court held the position that according to Section 499 of the Penal Code, defamation does not permit without the intention to harm another person’s reputation. The court looked into whether or not Devgan must have known the Pir Hazrat Moinuddin Chishti’s reputation would be defamed by her remarks.
Section 505(2): In the Section 505(2) the court examined whether the remarks made by Devgan were capable of creating any public panic or provoking between two communities. Hearings were held in order to determine the circumstances under which the statements were made including the extent of the broadcast and likelihood of the remarks to cause a breach of the peace. The other factor that the court also considered was whether the offered apology helped in preventing risks of public disorder, which clearly it did.
5. DEFECTS OF LAW
Proving Malicious Intent: A major difficulty that existed for was to provide evidence of specifically the ‘intent’, which is a legal requirement when seeking a claim under sections 153A and 295A of the IPC. This in turn becomes a barrier in ensuring that individuals who make statements in public that cause harm to others can be prosecuted despite them having made the statements recklessly or without adequate regard to the harm that they could cause. The focus on intent as a constitutional component of these crimes might reinvent a loophole for people so that they will not be punished for their actions even if their misdeeds injured others greatly.
Freedom of Speech vs. Religious Sentiments: The case also again brings into focus the dilemma of balancing between freedom of speech and freedom to hurt religious sentiments of people in an SOS like India. Freedom of speech is part of every country’s constitution as a human right but it’s a qualified privilege because what is prohibited is speech that endangers civil order and can lead to violence. It becomes difficult to decide when free speech turns into hate speech or defamation especially in today’s environment where a statement can be published to the world in a short span of time hence having severe consequences.
Role of Apologies in Legal Proceedings: Responsibility of an apology in terms of reducing legal responsibility and the need for it are also issues of debate. Hence, the apology provided by Devgan was considered by the court while determining his intent but it was not enough to extricate him from the charges. Some remarks that can be made conclude that the case concerns about the role of apology in the cases of hate speech or defamation, whether apology must be given more attention in some instances.
Political Influences on Legal Actions: It also uncover the issue of politicisation of law in that legal processes may be tainted with political motives. Thus, the defence stated that the FIRs filed in the present cases were of political nature to prevent a recognised media personality from continuing to work. This gives rise to questions such as credibility of the legal process and possibility of using the laws to persecute persons for paritiesh political reasons.
6. INFERENCE
A critical lesson which may be drawn from this case is the point of intention in establishing criminal culpability. Moreover, Devgan had every possibility to offend the actress which she did but since the remarks made by her were not malicious in clear evidence and sense the court had to quash the FIRs. It is therefore an indication of the importance of intent in Sections 153A and 295A and, in defamation cases under Section 499.
However, on a pessimistic note, the case also presents a weakness of the intent as the only means by which to determine negligence. The problem with proving intent is that this makes a loophole through which a person cannot be stripped off his freedom of speech even when the speech in question has negative repercussions. This brings about important essential questions as to whether the current legal provisions are adequate to deal with hate speech and defamation cases in the current evolving media context.
Such is the case it would also unveil the continued discussions on the extent of free speech in the context of India’s legal landscape. Free speech is one of the constitutional rights that people enjoy, however this is limited by the law and their is legal measures put in place to ensure that speech that causes harm to the society or encourages violence is prohibited. However the key question arises that where to make a distinction of government interference and freedom of speech, this becomes even more critical in the diverse country like India where religious sentiments are often sensitive.
Nandini Kothiyal
Symbiosis Law School, Pune