Petitioners: Amish Devgan
Respondents: Union of India
Acts involved: Indian Penal Code (IPC)
Important provisions: Sections 153A, 295A, and 505(2) of the Indian Penal Code and Section 66F of the IT Act [1]
Court: Supreme Court of India
Bench: Justices A.M. Khanwilkar and Sanjiv Khanna
Judgement date: December 7, 2020
FACTS
- Amish Devgan, a journalist and news anchor, during his news show on June 15, allegedly used offensive language and made derogatory statements about Hazrat Moinuddin Chisti, a revered Muslim saint, and referred to the Sufi saint Khwaja Moinuddin Chishti as a “terrorist” and “robber” and stating that he “changed the religion of masses.”
- This comment caused many FIRs to be lodged against him in various states under Sections 295A, 153A, 505(2) of the IPC for causing deliberate and malicious acts intended to outrage religious feelings, promoting enmity between different groups, and statements creating or promoting enmity, hatred, or ill-will between classes, respectively.
- On June 20, 2020, Devgan filed a writ petition in the Supreme Court of India. The petition prayed for quashing all the FIRs registered against the petitioner under the provisions of judicial relief as contained in Section 482 of the Criminal Procedure Code, 1973.
- Devgan contended that his statement was a mistake and sought quashing of the FIRs, asserting his right to freedom of speech and expression under Article 19(1)(a) of the Indian Constitution.
ISSUES RAISED
- Whether the FIRs filed against Amish Devgan for his remarks constitute a violation of his fundamental right to free speech under Article 19(1)(a) of the Indian Constitution.
- Whether the remarks made by Devgan fall within the ambit of sections 295A, 153A, and 505 of the IPC, thus justifying the registration of the FIRs.
- Whether the petition should be dismissed under Article 32 of the Indian Constitution in an insouciant manner.
- Whether multiple FIRs in different states for the same incident are legally tenable or constitute harassment.
CONTENTION
Contentions of Petitioner
- Devgan contended that his comments were said inadvertently and were not made with any malicious intent.
- He said his statements were not made to arouse hatred or enmity and therefore no offense under Sections 153A, 295A, and 505(2) of the IPC had been committed.
- He further contended that multiple FIRs on the same incident constituted an infringement of his Article 19 rights (freedom of speech and expression) of the Indian Constitution and drew emphasis on a stand of free speech and expression, which cannot be curtailed on account of unintentional error
- He contended it was a trifling issue under Section 95 of the IPC.
Contentions of Respondent
- Devgan’s remarks were derogatory and had the potential to incite religious disharmony and offend the sentiments of a particular community.
- They pointed out that repeating the derogatory term “Chisti” three times was not coincidental or unintentional.
- The remarks made during the televised debate were prima facie offensive and fall within the scope of sections 295A, 153A, and 505 of the IPC.
- The respondents noted that the appellant’s apology came only after FIRs were filed, arguing that his actions disregarded the reasonable restrictions on Article 19 meant to prevent hatred and outrage religious feelings among Hindus and Muslims.
- The multiple FIRs are justified given the wide geographical spread of the offended audience.
RATIONALE
The court reviewed several legal justifications:
- Reasonable Restrictions on free speech: The Supreme Court gathered the background and purpose of Devgan’s statement. It has observed that while agreeing that unnecessarily the freedom of expression needs to be constrained under certain circumstances, particularly in matters relating to hate speech that might lead to violence or disturb the public tranquility, the court took into regard its sterling role in a democratic system.
- Balanced approach: It was observed by the judiciary that a balance needs to be struck between ensuring the protection of the right of free speech and ensuring that such exercise does not infringe on the rights or dignity of another or disturb the calm of the public at large.
- Analysis of Hate Speech Laws: The court made an analysis from the view of many countries, such as the UK, USA, Germany, Canada, and France. The common findings were that though freedom of expression was guaranteed in these jurisdictions, it was not observed as absolute. The common thread noticed by the court is that an individual’s rights to self-expression vis-à-vis community harmony.
- Handling of Multiple FIRs: The court rationalized that although a multiplicity of FIRs was filed, the same should be regarded as claims but yoked together and dealt with accordingly at the venue of the first filing. This approach was for the doctrine of trial management where the legal processes are condensed but every complaint is listened to.[2]
- Distinguishing Free Speech from Hate Speech: An essential part of the reasoning was the court’s attempt to differentiate free speech from hate speech, with the former being described as the right to agree or disagree with opposing views and the latter as words uttered in a derogatory or offensive manner with the purpose of spreading hatred against a particular community. The appeals court reasoned that the criminalization of hate speech is for the preservation of national dignity and peace.
- Balancing Rights and Responsibilities: The thinking of the court has been based on the balancing of the fundamental rights of a citizen and his / her responsibility toward the maintenance of social harmony. The court felt that certain forms of speech would cause social unrest and break the peace in the community.
- Context and Purpose Evaluation: This was not explicitly stated, but the manner in which the court structured its ruling indicates that the purpose and the context in which the statements were made along with the clear intentions were important factors on which the determination of whether hate speech had occurred was based.
- Rejection of ‘Trivial Offense’ Argument: The court rejected the contention of Devgan that his statements were petty offenses committed out of negligence. It observed further that it was not the concern of the court at this stage to go into the actual nature of the offense and hence, it is left to the concerned competent authority. The statement of Devgan, though it was a mistake on his part and claimed to be inadvertent, had the potential to incendiary to religious enmity and disturb public peace, held the Court.
- The Court observed that these provisions under Sections 153A, 295A, and 505(2) of the IPC were enacted to punish speech that promotes enmity or hatred between different groups, and the remarks of Devgan fell within this ambit.
- “The variable recognises that a speech by ‘a person of influence’ such as a top government or executive functionary, opposition leader, political or social leader of following, or a credible anchor on a T.V. show carries a far more credibility and impact than a statement made by a common person on the street.” [3]
DEFECTS OF LAW
- Equal protection under the law and prohibition of religious discrimination are inadequately enforced.
- One community’s disrespect of another’s saints is something that cannot be allowed.
- It leads to the creation of some ambiguities and difficulties in the prevailing legal framework on hate speech. Definitions of what actually amounts to hate speech under sections 153A, 295A, and 505(2) of the IPC are capable of being wide and subjective, but then, again, it invoke variable interpretations.
- This may have a chilling effect on free speech whereby people will be reluctant to express their opinions for fear of possible legal actions.
- The lack of fine lines between unintentional errors and deliberate hate speech also makes the legislation implementation very complex. The not-so-careful and irreverent comments towards revered saints can, in theory, amount to hate speech, posing a threat to public safety.
- Article 19(1) of the Constitution entitles everyone to the right of free speech—subject to no harm or defamation against the other. This case raises a question of the gap between entitled fundamental rights and implementable actuality in life.
INFERENCE
- The judgment in Amish Devgan v. Union of India underscores the delicate balance that needs to be maintained between protecting free speech and preventing hate speech.
- While the right to free speech is fundamental in a democracy, it is not absolute and must be exercised with responsibility, particularly in a diverse and pluralistic society like India.
- The case highlights the need for clearer legal definitions and guidelines to distinguish between permissible speech and hate speech, ensuring that laws are applied fairly and justly without stifling legitimate expression.
- The Court’s decision reflects an attempt to navigate the complex interplay between free speech and societal harmony, emphasizing that while unintentional errors in speech may occur, public figures and individuals in positions of influence must exercise greater caution and responsibility in their expressions to avoid inciting hatred or violence.
Case commentary by Anusree Nambiar
O P Jindal Global University
[1] (2020) SCC Online SC 994.
[2] Amish Devgan v. Union of India (2020): a case that outraged religious grounds , https://blog.ipleaders.in/amish-devgan-v-union-of-india-2020-a-case-that-outraged-religious-grounds/
[3] Ibid