This article has been written by Gagandeep Singh Narula, pursuing an Advanced Diploma in Contract Drafting and Negotiation Course and has been edited by Oishika Banerji (Team Lawsikho).
Introduction and facts of the case
The case of Amish Devgan v. Union of India (2020), revolves around the petitioner named Amish Devgan who was a renowned TV journalist and was alleged to have used offensive language and derogatory statements against a famous Muslim saint named Hazrat Moinuddin Chisti during a debate session on his show named ‘Aar Paar’ on June 15, 2020, while a discussion on the Places of Worship Act, 1991. The petitioner said a few lines like ‘aakrantak Chisti aaya…, lootera aya…, usne dharam badle’ which upon translation in English corresponds to “Terrorist and Robber Chisti came and changed the religion of masses”. It was concluded that the above lines hurt the sentiments and religious beliefs of the Muslim community thus affecting the dignity and unity of the nation. After the show telecast, the petitioner was apprehended and abused on social media platforms along with several FIRs filed against him for such a criminal offence.
On 17 June 2020, the petitioner recorded his apology stating that he inadvertently used the name of Saint Chisti and he had no intention to create disharmony and feelings of resentment among any community. After that, a writ petition was filed in the Supreme Court on June 20, 2020, by the petitioner seeking the expulsion of all the FIRs against him under the provisions of judicial relief as stated in Section 482 of the Criminal Procedure Code, 1973 (CrPC), which deals with inherent powers of the high court. The petition was amended with the prayer of issuance of the writ of certiorari and mandamus to protect the petitioner against any threats or abuses that might be conducted after the show telecast, merging all the seven FIRs with the first FIR having No. 78 before the Rajasthan Police Station and providing protection to the family members of the petitioner.
Issues raised before the Supreme Court of India
The following issues were framed for consideration before the Supreme Court:
- Whether the words stated by the petitioner are of derogatory and offensive nature that may lead to the feeling of unrest and disharmony among the community?
- Whether the words degrade the dignity and pride of the nation?
- Whether the petition should be dismissed under Article 32 of the Indian Constitution in an insouciant manner?
- Whether the multiple FIRs registered against the petitioner are maintainable?
Contentions raised by the parties
Arguments advanced by the Appellant
- The appellant argued that multiple FIRs filed against the same offence more than once shall lead to an infringement of his fundamental rights of freedom of speech and expression as enshrined in Article 19 of the Indian Constitution.
- The appellant’s motive was not to create disharmony and arouse unjust feelings among the members of the Muslim community and all his words were merely uttered due to negligence and carelessness which would not be covered under Sections 153A, 295A, and 505 (2) of the Indian Penal Code (IPC), 1860 and Section 66-F of Information Technology (IT) Act, 2000.
- He argued that it was a case of trifled argument without an intention to cause serious harm or offence to anyone and should be covered under Section 95 of IPC, 1860.
- The appellant in support of his contention gave the reference of Arnab Ranjan Goswami vs Union Of India (2020) and Balwant Singh And Anr vs The State Of Punjab (1975) to be considered before the court.
Arguments advanced by the Respondent
- The justifications by the appellant were opposed by the state of Rajasthan, Maharashtra, Telangana, and Uttar Pradesh.
- The respondents argued that the petitioner has a habit of offending as the same incident was reported previously by the petitioner in the past.
- It was not a coincidence or unintentional mistake of repeating the word Chisti three times during the debate.
- The apology by the petitioner was recorded after the filing of FIRs against his indecent behaviour and derogatory comments uttered during the show.
- Article 19 of the Indian Constitution comes with some restrictions and impositions that were neglected by the petitioner thus promoting hatred and outraging religious feelings among Hindus and Muslims.
Decision and findings of the Supreme Court of India
One of the most essential factors in determining the thought underlying a judgement is the deep analysis by the courts of the category of offences around the world including hate speech and outraging the religious and sentimental feelings among the masses. The other factor is understanding the legislative framework of Article 19 of the Indian Constitution along with its restrictions. The court considers reference to the case of Pravasi Bhalai Sangathan vs Union of India (2014) in which the recommendations are discussed to enact new laws in the Parliament regarding hate speech. Initially, the court analysed the legal provisions in various countries like the UK, USA, Germany, Canada, and France. It was seen that in every country, the freedom of speech and expression is provided with limitations and there is a balance between the rights and self-expression of an individual and community.
Following the analysis, the court started a review of the Indian jurisprudence related to laws dealing with criminalization and repudiation of religious beliefs among the people. It also mentioned the need to maintain a balance between fundamental rights and freedom of speech and expression. Both factors are referred to in the cases- Ramji Lal Modi vs The State Of U.P (1975) and Maneka Gandhi vs Union Of India (1978) respectively but it did not prove fruitful for the petitioner for quashing the FIRs against him.
The court tried to differentiate between free speech and hate speech. While the former is the right given to any individual to agree or disagree with the opposition’s comments while the latter includes words uttered in a derogatory or offensive manner to spread hatred against the particular community. The motive behind the criminalization of hate speech is to preserve and maintain the dignity and peace of the nation.
The rationale behind the maintainability of the registered FIRs is to look into the legislative provisions under which seven FIRs had been filed against the petitioner. It was also stated that the complaints under various FIRs should be considered as claims but they would all be blended and addressed simultaneously at the place of filing of the first FIR.
Further, the court also dismissed the petitioner’s argument which states that it was a merely trivial offence conducted in due negligence during the show. It was noted that the nature of the offence would be collected and considered by legal authorities and the court was not in a position to determine the true nature of the offence at this stage.
Existing loopholes in the prescribed law
- The provision of equal protection of the law and prohibition of any discrimination based on religion has not been followed properly. How can a member of one community disrespect the saints of another community?
- Article 19 (1) of the Constitution gives every individual the freedom to speech and expression provided that it should not hurt or defame the opposite party. The present case lacks synchronisation between the fundamental rights and their application in real-world scenarios.
- Even the impious words uttered in due negligence about any revered saint could not be ignored and it led to the constitution of hate speech, therefore, endangering public safety.
- No provisions were defined to criminalise the incidents of hate speech before the utterance of derogatory and infuriating statements.
Critical analysis of the judgement delivered by the Supreme Court of India
I think free speech is probably the coolest thing we have in this country, and again, you can label it hate speech and dismiss it, and then you’re allowed to censor it.
A clear distinction must be followed between the right to freedom of speech and hateful speech to avoid the feeling of disharmony and resentment among the public. Free speech is considered a healthy remark or even critical and would never lead to hatred among the community while the hateful speech itself comes with the motive to create hatred, disharmony, resentment, and infatuation between the parties. Even though the decision of the court depends on research and knowledge of various foreign jurisdictions and legislations along with the court’s precedents to re-evaluate the extent of hate speech, drawing the outer boundaries between democracy and free speech is still a cumbersome task.
The aforementioned commentary throws light on the interpretation of legislation of hate speech. It is also due to the inefficiency and inconsistency in the court decisions. The concept of hate speech has not been defined anywhere in the law. Its extent can be interpreted based on legislation and statutes of various court judgments. According to Black’s Law Dictionary, it is defined as a speech that is given to spread hatred among groups to incite violence and disharmony among the public. The Law Commission of India in its 267th report suggested the inclusion of the following sections in the IPC that would create a uniform procedural approach while dealing with cases of hate speech. Sections 153C and 509 A would cover the offences committed when someone tries to threaten or intimidate with derogatory and insouciant remarks on someone’s caste, race, gender, and religion. These sections would work against racial discrimination and hate speech incidents.
As we come to the end of this article, it is significant to state that several landmark decisions that have been delivered by our Apex Court and other high courts have had a chilling effect on free speech, which is ironically also recognized as one of the fundamental rights guaranteed by Part III of the Indian Constitution. Categorising free speech and hate speech in different compartments and reaching a rational conclusion is the job of the judiciary for it holds the responsibility of protecting the guaranteed rights of the Indian citizens. Our existing laws are also ambiguous in this subject-matter thereby leaving it grey for a considerable period of time now. The solution to this growing issue in the democratic India can be resolved by collaborative efforts of the legislature and the judiciary towards upholding the virtues of the Indian Constitution on one hand and also allowing Indian citizens to act freely without the fear of getting severe consequence for such action, provided the same is carried out within reasonable terms.
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