Mischief

This article is written by Vedika Goel of OP Jindal Global University, Haryana. This article provides a detailed analysis of Section 153 and 153A of IPC,1860 which attempts to punish those who provoke or spread any form of riots or religious enmity.

It has been published by Rachit Garg.

Introduction

The Constitution of India guarantees certain basic fundamental rights to its citizens. The most instrumental is the right to life, the right to equality and the right to freedom of speech and expression as provided under Article 21, Article 14 and Article 19 respectively. However, it is equally important that such rights are not misused by the citizens. For this particular reason, the legislation has various laws that not only act as safeguards to any potential misuse of these fundamental rights but also ensure harmony among different cultural and ethnic groups. The Indian Penal Code,1860 (IPC) provides for various provisions in the form of restrictions or penalties. Section 153 and 153A of the IPC strive to punish those who spread any form of religious enmity under the umbrella of the right to freedom of speech and expression. 

This article will discuss the essentials, functions as well as the punishments provided under these provisions along with a detailed analysis of the various judgements that have been passed by the judiciary regarding the scope and nature of Section 153 and 153A IPC.

Hate crimes in India

Hate crimes, as the name suggests, consists of those criminal acts that are solely motivated by bias, hate or discontent towards a particular group or community. The root cause of such hatred is mostly religious, ethnic, and racial differences between different groups. However, hate crime is usually done against a community at large and therefore the outcome of this crime can be grave and extremely destructive. India, also known as the hub for cultural diversity, has groups and communities belonging to various religions, castes, races, creeds and even languages.  India has witnessed religious differences right from partition to the present day. The Godhra riots during partition, Muzaffarnagar riots, Baduria riots in Bengal are clear examples of the presence of hatred, disharmony, and enmity among various religious groups.The rising number of religious riots that India was witnessing made it necessary for the legislation to intervene and bring out certain laws that could criminalise such offences. 

Nature of the offence under Section 153 IPC

Section 153 IPC states that whoever deliberately or wantonly causes or provokes any riot through illegal means and knows that such provocation may cause the offence of rioting is liable to be punished under this provision.The most interesting aspect of this provision is that one cannot escape punishment even if the riot is not committed.This means that it places liability even if the consequence of such provocation does not directly result in rioting. As per Section 1 of the Criminal Procedure Code,1973, an offence can be classified as cognizable and non-cognizable. 

While a cognizable offence allows the police officer to arrest the accused without a warrant, a non-cognizable offence, on the other hand, allows the police officer to do so only after taking the necessary permission from the court. Moreover, cognisable offences mainly pertain to offences of serious nature, and non-cognizable offences usually consist of private wrongs that are less serious in nature. Accordingly, since the offence committed under Section 153 is of a serious nature, it is classified as a cognisable offence wherein the accused can be arrested without a warrant.

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Liability under Section 153 IPC

Section 153 IPC prescribes the punishment of this offence in two parts. Firstly, if the provocation results in a riot being committed, the person will be entitled to a punishment of one year or a fine or both. Accordingly, it is considered as a bailable offence and can be tried by any magistrate. Secondly, if the riot is not committed, then the person will be entitled to a  punishment of 6 months or a fine or both. Similar to the first part, the offence is bailable, however, it can be tried only by a magistrate of first class. Therefore, the first step to determining the liability of the person under this provision is to see the outcome of the provocation. Accordingly, once this is determined, the liability under this section can be imposed upon the person.

Case laws under Section 153

To understand the scope and nature of Section 153 IPC, it is important to have a clear understanding of the court’s interpretation of this provision. This section will deal with important cases that have come up before the courts in India under Section 153 IPC.

Aroon Purie v. HL Verma & Anr. (1998)

In this case, the complainant, a practising advocate from Bombay was a devotee of Chatrapati Shivaji, who was believed to be an incarnation of God, who Bombay,was sent to the Earth in order to protect and propagate the “Sanatah Hindu Dharma”. Further, it was alleged that in 1991, a popular magazine called ‘India Today’ had initiated a debate on the topic of ‘secularism’. The debate invited participation from some prominent figures. 

Aroon Purie, the petitioner, chaired the above debate. It was alleged that one of the accused had made some derogatory remarks in the debate that caused a lot of opposition among the supporters of Shivaji. Accordingly, the petitioner argued that such remarks attract the offence committed under Section 153 IPC. The petitioner also argued that it was merely chairing and collating the views expressed by different personalities and thereby had no hand in causing this opposition. 

The Court laid out three essential ingredients of Section 153 IPC as follows:

  1. The act committed must be illegal in nature
  2. Such an illegal act must be done with a mala fide intention
  3. The offence of ‘rioting’ must be the outcome of such an illegal act

Therefore, keeping in mind the essential ingredients of Section 153 IPC, the Court agreed with the contentions of the petitioner and ruled that merely presiding over the debate that is on the subject of ‘secularism’ cannot be deemed as an illegal act. Further, even publishing of the debates by the editor cannot amount to an illegal act. The Court once again reiterated that even though the remarks were malignant, it still cannot attract the offence of Section 153 since publishing of speeches as well as presiding over a speech cannot be considered as an illegal act. Therefore, the judgement is crucial as it places strong emphasis on the crucial ingredients of section 135 IPC. 

Dr. Anbumani Ramadoss v. State of Tamil Nadu (2021)

In this recent case, a statement given by a petitioner had caused communal tension, leading to severe destruction of property. The communal tension had ultimately caused a riot. The statement expressed a certain sense of dissatisfaction with the current government as it had not taken any action on a certain issue.The court ruled in favour of the petitioner and held that merely expressing dissent with the government for not taking necessary measures on certain elements does not mean that the person who makes such a statement intends to provoke or cause a riot among the communities.Therefore, this recent judgement once again reiterates the nature as well as the scope of Section 153 IPC.

Section 153A of IPC 

Section 153A IPC attempts to punish those who engage in promoting any kind of enmity among different groups on the basis of religion, caste, race, place of birth or residence, or even language. The provision puts a liability on those who-

  1. Spread enmity in the form of words (spoken or written), visual representations, and signs with the intention of causing disharmony, hatred or disturbance among people belonging to different groups, religions, castes or communities.
  2. Spread disharmony and disturb the public tranquillity of the people belonging to different racial and religious groups.
  3. Aid in the organising of certain movements, drills that encourage as well as train the participants of such movements to use criminal force and violence upon people belonging to other racial and religious groups and communities.

Nature of Section 153A

Since Section 153A imposes criminal liability upon those who spread enmity and disharmony between different groups of people through words, statements, and even through violence or criminal force, the offence made out under this section is undoubtedly grave and of a serious nature.  Accordingly, the offence committed under Section 153A is a cognisable offence, thereby allowing the police officers to arrest the accused without a warrant. Further, the offence is non-bailable in nature wherein the accused is tried by the magistrate of the first class.

Section 153A and Section 295A IPC

While Section 153A IPC was added during the British era itself, the legislation also introduced Section 295A IPC by the Criminal Law Amendment Act,1927 to broaden the scope of such offences. It is important to note that Section 295A and Section 153A go hand in hand. This means that the two provisions interact with each other and the offences enlisted under these sections are interlinked. 

Section 295A states that those who insult or attempt to insult any religious sentiments of any particular group by way of gestures or words are liable to be punished under this offence. 

The only difference between the two sections is that while Section 295A criminalises those who offend or insult any religious group or a religion, Section 153A IPC, on the other hand, criminalises creating enmity between two different groups and not just within a single group as in the case of Section 295A IPC.

Essentials of Section 153A of IPC

In order to understand the essential ingredients of Section 153A IPC, it becomes necessary to carve out some important case laws that sketch the ingredients of Section 153A IPC.

Ramji Lal Modi v. State of UP (1957)

In this case, the Court clarified that to constitute an offence under Section 135A, the statements, words, or actions  must be malfide and cannot be unintentional. Therefore, mens rea is an essential ingredient of Section 153A IPC. Further, in the case of Manzar Sayeed Khan v. State of Maharashtra, the Court reiterated and held that the prosecution must prima facie establish that the accused had the mens rea to cause enmity between different classes of people.

Azizul Haq Kausar Naqwi v. State of Uttar Pradesh (1980)

Additionally, the judgement of the Allahabad High Court, in this case, made it clear that if the words or statements are mild and of a dignified nature and do not result in hurting or insulting the deeper religious sentiments of any group or community, the offence of Section 153A is not committed.

Bilal Ahmed Kaloo v. State of Andhra Pradesh (1997).

In this case, the court stated that to attract the offence of Section 153A IPC, it is important to clearly check whether the alleged enmity is caused between two different groups. Therefore, the mere mentioning of a religious community while inciting the religious sentiments of one community cannot constitute an offence under Section 153A IPC.

Amish Devgan v. Union of India (2020)

In this recent 2020 judgement, the Supreme Court clarified the scope as well as the essential ingredients to constitute an offence under Section 153A IPC. In this case, the Court interpreted the scope of the term ‘public tranquillity’ under Section 153A IPC and held that the term must be read in conjunction with the term ‘public order’. Therefore, this means that normal and routine issues of law and order cannot come within the ambit of public tranquillity and therefore, cannot constitute an offence under Section 153A IPC. The Court also stated that it is important that misuse and abuse of this provision is prevented at all costs.

Therefore, keeping in view the above judgements of the court, the essential ingredients of Section 153A can be summarised as follows:

  1. The words, statements, or signs must cause enmity, hatred, and disturbance of harmony between different racial, religious, and language groups.
  2. The alleged enmity must be caused among two or more communities. The mere mention of the other community is not sufficient to attract punishment under Section 153A IPC.
  3. The presence of mens rea, i.e., the person must have the intention of causing enmity and disharmony between different groups and communities of people.
  4. The words, spoken or written, must be of a serious nature and must directly hurt the deep religious sentiments of the group or community.
  5. Public tranquillity is synonymous with the term ‘public order’. This means that disturbance of routine issues of law and order does not attract this offence. 

Punishment under Section 153A

Considering the serious nature of this offence, the accused shall be entitled to a punishment of imprisonment that may extend upto three years or fine or both. However, an interesting point to note is that in cases where the offence is committed in a place of worship, the same punishment may extend up to five years or fine or both.

Conclusion

India, being a sovereign, socialist, secular, and a religious country, is home to the most diverse groups and communities. Accordingly, the constitution also guarantees a plethora of fundamental rights to its citizens. However, the constant misuse and abuse of these rights was an alarming call for the legislation to step in and create certain safeguards. Religious differences and hatred among various groups is not uncommon in a country that is popular for its diversity. 

Therefore, laws like Section 153, 153A and even Section 295A are targeted towards achieving ‘unity in diversity’. Moreover, it is a well known fact that freedom that is guaranteed cannot be absolute. Therefore, certain restrictions are necessary to achieve balance and to ensure that freedom is not misused in any way. Introducing religion specific laws is undoubtedly a welcome move. However, certain loopholes are still present in these sections. 

For instance, the section remains silent on the reasonability factor. In simple words, it does not define the essential ingredients of enmity. For this exact reason, the courts have been flooded with numerous trivial cases on religious issues. While the courts have continuously discussed the scope of these sections, it is important that the legislation passes an amendment that addresses the scope of absolute enmity by clearly stating the exceptions for the same. This will be a step forward in fixing the existing loopholes in these sections.

Frequently Asked Questions (FAQs)

1. What is the main difference between Section 153A and Section 295A IPC?

While Section 295A criminalises those who offend or insult any religious group or a religion, Section 153A IPC, on the other hand, criminalises creating enmity between two different groups and not just within a single group as in the case of Section 295A IPC.

2. Is intention a necessary requirement to constitute an offence under Section 153A IPC?

It has been clarified by the court in various judgments that possessing a mala fide intention is a necessary requirement to constitute an offence under Section 153A IPC. prosecution must prima facie establish that the accused had the mens rea to cause enmity between different classes of people.

3. Can a person escape liability even if the outcome is not rioting under Section 153 IPC?

As per the provision, a person cannot escape punishment even if the riot is not committed.This means that it places liability even if the consequence of such provocation does not directly result in rioting. 

References

  1. https://www.scconline.com/DocumentLink.aspx?q=JTXT-0000025037
  2. https://copyright.lawmatters.in/2012/04/criminalisation-of-speech-promoting.html.
  3. https://www.livelaw.in/top-stories/153a-ipc-intent-public-tranquility-supreme-court-166979.
  4. https://theleaflet.in/right-to-offend-and-hurt-distinguishing-between-objectionability-and-illegality-part-ii/.
  5. https://www.lawtendo.com/indian-kanoon/ipc/section-153

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