AMISH DEVGAN versus UNION OF INDIA AND OTHERS

[2020] 14 S.C.R.

AMISH DEVGAN

UNION OF INDIA AND OTHERS

(Writ Petition (Criminal) No. 160 of 2020)

BDECEMBER 07, 2020

[A. M. KHANWILKAR AND SANJIV KHANNA, JJ.]

Constitution of India – Arts. 19(1)(a), 19(2) and 32 – PenalCode, 1860 – ss. 295A, 153A, 505(2) – Hate speech – The petitionerhosted and anchored debate on the Places of worship (SpecialCProvisions) Act, 1991 on news channel – While hosting the debate,the petitioner had described Pir Hazrat Moinuddin Chishti, as aninvader, terrorist and robber who had come to India to convert itspopulation to Islam – Post the telecast as many as seven FIRsconcerning the said episode were filed and registered against theDpetitioner in the States of Rajasthan, Telangana, Maharashtra andMadhya Pradesh – It was alleged that petitioner had deliberatelyand intentionally insulted Pir or pious saint belonging to theMuslim community, revered even by Hindus, and thereby hurt andincited religious hatred towards Muslims – The petitioner field writpetition and sought (a) quashing of FIRs/ complaints; (b) inEalternative, transfer and club the FIRs mentioned with the First FIR,i.e. FIR at Ajmer, Rajasthan; (c) direction that no coercive processto be taken against the petitioner in the FIR and the Union of Indiato provide him and his family adequate safety and security – In hissubmissions, petitioner expressed regret and claimed that words wereFuttered inadvertently and by mistake – An interim order was passedby the Supreme Court that stayed further steps/action on the FIRsmentioned in the writ petition and petitioner was protected againstany coercive process arising out of or relating to the said FIRs –Held: Three elements can be used to define and identify ‘hate speech’namely- content-based element, intent-based element and harm-Gbased element – The content-based element involves open use ofwords and phrases generally considered to be offensive to aparticular community and objectively offensive to the society – Theintent-based element of ‘hate speech’ requires the speaker’s messageto intend only to promote hatred, violence or resentment against aH

particular class or group without communicating any legitimatemessage – The harm or impact-based element refers to theconsequences of the ‘hate speech’ that is to harm victim which canbe violent or such as loss of self-esteem, economic or socialsubordination – S.295A of the Penal Code encapsulates all threeelements, namely, it refers to the content-based element when it refersto words either spoken or written or by signs or visible representation– Similarly, sub-section 505 of the Penal Code refers to personpublishing or circulating any statement or report containing rumouror alarming news – In the instant case, the petitioner was equal co-participant, rather than mere host – The transcript, including theoffending portion, would form part of the ‘content’, but anyevaluation would require examination and consideration of thevariable ‘context’ as well as intent and the ‘harm/impact’ – Thesehave to evaluated before the Court can form an opinion on whetheran offence is made out – The petitioner also relies on his apology –Thus, it is not an appropriate stage to quash FIR and stall theinvestigation into all the relevant aspects – The interim protectiongranted to the petitioner against arrest subject to his joining andcooperating in investigation to continue – Further, prayer to transferall the FIRs to police station Dargah, Ajmer, Rajasthan accepted.Code of Criminal Procedure, 1973 – s.156(1) and s.179 –Conjoint reading of – Penal Code, 1860 – ss. 295A, 153A, 505(2)– Hate speech – Cause of Action – While hosting debate show,the petitioner had described Pir Hazrat Moinuddin Chishti, as aninvader, terrorist and robber who had come to India to convert itspopulation to Islam – Post the telecast as many as seven FIRsconcerning the said episode were filed and registered against thepetitioner in the States of Rajasthan, Telangana, Maharashtra andMadhya Pradesh – Petitioner contended that criminal proceedingsarising from the impugned FIRs ought to be quashed as these FIRswere registered in places where no ‘cause of action’ arose – Held:s.179 of Cr.P.C. provides that an offence is triable at the place wherean act is done or its consequence ensues – The audience, includingthe complainants, were located in different parts of India and wereaffected by the utterances of the petitioner – Further, clause (1) ofs.156 of Cr.P.C. provides that any officer in-charge of policestation may investigate any cognizable case which court having

Ajurisdiction over the local limits of such station would have thepower to inquire into or try – Thus, conjoint reading of ss.179and 156 (1) of the Cr.P.C. make it clear that the impugned FIRs donot suffer from this jurisdictional defect.

Penal Code, 1860 – s. 95 – Act causing slight harm – WhileBhosting debate show, the petitioner had described Pir HazratMoinuddin Chishti, as an invader, terrorist and robber who hadcome to India to convert its population to Islam – The petitioner hasrelied upon the decision of the Supreme Court in Veeda Menez andthe decision of the High Court of Delhi in Neelam Mahajan to pleadthe defence of trifle u/s. 95 of the Penal Code – Held: The instantCcase cannot be equated with either Veeda Menez or NeelamMahajan’s case where the factual matrix was undisputed and admitted– It would be wrong and inappropriate in the present context toprejudge and pronounce on aspects which are factual and disputed– The plea raised by the petitioner cannot be accepted withoutDascertaining facts and evidence.

Constitution of India – Arts. 19(1)(a), 19(2) and 32 – HateSpeech – Constitutional and statutory treatment of ‘hate speech’depends on the values sought to be promoted, perceived harminvolved and the importance of these harms – Consequently, aEuniversal definition of ‘hate speech’ remains difficult, except forone commonality that ‘incitement to violence’ is punishable.

International Law – Hate Speech – The American Frameworkon hate speech is based on four major philosophical justifications;Justification from democracy, Social contract theory, Pursuit of theFtruth and Idea of autonomy – The Canadian approach emphasiseson multiculturalism and group equality, as it places greater emphasison cultural diversity and promotes the idea of ethnic mosaic – TheAustralian approach is substantially aligned with Canada – TheSouth African position regards dignity as paramount constitutionalvalue and the law and the courts are willing to subjugate freedomGof expression when the latter sufficiently undermines the former –The position in the United Kingdom has shifted over the years fromreinforcing the security of the government to checking incitementto racial hatred among non-target audience with the aim ofprotecting targets against racially motivated harassment – GermanyHbelieves that freedom of expression is one amongst several rights

which is limited by principles of equality, dignity and multiculturalism– The French law gives primacy to freedom of expression, which itbelieves is meaningless without the right to offend, which would tosome not only include the right to criticise and provoke but also theright to ridicule when it comes to ideas and beliefs, includingreligious beliefs.

Penal Code, 1860 – s.295A – Held: Import of s.295A of thePenal Code, Ramji Lal Modi holds, is to curb speech made with‘malicious intent’ and not ‘offensive speech’ – Criminality wouldnot include insults to religion offered unwittingly, carelessly orwithout deliberate or malicious intent to outrage the religious feelings– Only aggravated form of insult to religion when it is perpetuatedwith deliberate and malicious intent to outrage the religious feelingsof that group is punishable.

Constitution of India – Art. 19 – Penal Code, 1860 – s.153Aand s.505(2) – In Ramji Lal Modi and the later decision in BilalAhmed Kaloo, which had examined ss.153A and 505(2) of the PenalCode, had primarily applied the ‘Bad Tendency test’ as propoundedby the American jurists – In Dr. Ram Manohar Lohia, referring to thewords ‘in the interest of… public order’ in clause (2) to Article 19had observed that order is basic need in any organised society –It implies orderly state of society or community in which the citizenscan peacefully pursue their normal activities of life .

Words and Phrases – ‘minor breaches’ and ‘security of State’– discuss and defined.

Constitution of India – Art. 19 – ‘Dignity’ in the context ofhate speech – Held: Loss of dignity and selfworth of the targetedgroup members contributes to disharmony amongst groups, erodestolerance and open-mindedness which are must for multi-culturalsociety committed to the idea of equality – It affects an individualas member of group – It is however necessary that at least twogroups or communities must be involved; merely referring to feelingsof one community or group without any reference to any othercommunity or group does not attract the ‘hate speech’ definition.

Constitution of India – Art. 19 – Hate speech – Dignity ofindividual and unity and integrity of the nation – Held: Dignity ofindividual and unity and integrity of the nation are linked, one in

Athe form of rights of individuals and other in the form of individual’sobligation to others to ensure unity and integrity of the nation –The unity and integrity of the nation cannot be overlooked andslighted, as the acts that ‘promote’ or are ‘likely’ to ‘promote’divisiveness, alienation and schematism do directly and indirectlyimpinge on the diversity and pluralism, and when they are with theBobjective and intent to cause public disorder or to demean dignityof the targeted groups, they have to be dealt with as per law – Thepurpose is not to curtail right to expression and speech, albeit notgloss over specific egregious threats to public disorder and inparticular the unity and integrity of the nation.CConstitution of India – Art. 19 – Hate speech – Analysis anddefinition of – Held: Three distinct elements that legislatures andcourts can use to define and identify ‘hate speech’, namely – content-based element, intent-based element and harm-based element (orimpact-based element) – The content-based element involves openDuse of words and phrases generally considered to be offensive to aparticular community and objectively offensive to the society – Theintent-based element of ‘hate speech’ requires the speaker’s messageto intend only to promote hatred, violence or resentment against aparticular class or group without communicating any legitimatemessage – The harm or impact-based element refers to theEconsequences of the ‘hate speech’ that is to harm victim which canbe violent or such as loss of self-esteem, economic or socialsubordination.Constitution of India – Art. 19 – Distinction between Freespeech and Hate speech – Held: distinction between ‘free speech’Fwhich includes the right to comment, favour or criticise governmentpolicies; and ‘hate speech’ creating or spreading hatred against atargeted community or group – The former is primarily concernedwith political, social and economic issues and policy matters, thelatter would not primarily focus on the subject matter but on theGsubstance of the message which is to cause humiliation andalienation of the targeted group – The object of criminalising thelatter type of speech is to protect the dignity and to ensure politicaland social equality between different identities and groupsregardless of caste, creed, religion, sex, gender identity, sexual

orientation, linguistic preference etc.– Freedom to express and speakis the most important condition for political democracy.

Words and Phrases – ‘Tolerance’ – discuss and defined.Penal Code, 1860 – s.153A – Held: Deliberate and maliciousintent is necessary and can be gathered from the words itself-satisfying the test of top of Clapham omnibus, the who factor personmaking the comment, the targeted and non targeted group, thecontext and occasion factor- the time and circumstances in whichthe words or speech was made, the state of feeling between the twocommunities, etc. and the proximate nexus with the protected harmto cumulatively satiate the test of ‘hate speech’ – ‘Good faith’ and‘no legitimate purpose’ test would apply, as they are important inconsidering the intent factor.

Penal Code, 1860 – s.153A (b) – Held: In the context ofs.153A(b), public tranquillity, given the nature of the consequencein the form of punishment of imprisonment of up to three years,must be read in restricted sense synonymous with public orderand safety and not normal law and order issues that do not endangerthe public – It cannot be given the widest meaning so as to fall foulof the requirement of reasonableness which is constitutionalmandate.

Words and Phrases – “Attempt’ in the context of hate speech– Held: An ‘attempt to constitute crime’, the impugned act shouldbe more than mere preparation and reasonably proximate to theconsummation of the offence, which has been interrupted – In thecontext of ‘hate speech’, including the offences related to promotingdisharmony or feelings of enmity, hatred or ill-will, and insultingthe religion or the religious beliefs, it would certainly require theactual utterance of words or something more than thought whichwould constitute the content.

Code of Criminal Procedure, 1973 – Quashing of FIR at anearly stage – The Supreme Court has at the initial stage quashedthe proceedings arising out of the FIR, namely, Manzar SayeedKhan, Mahendra Singh Dhoni, Ramesh as well as Balwant Singh –However, the ratio in Balwant Singh has to be applied with cautionas the decision had proceeded on failure of prosecution.

ACode of Criminal Procedure, 1973 – First Information Report(FIR) – Definition and meaning of – Held: Acronym FIR, or theFirst Information Report, is neither defined in the Criminal Codenor is used therein, albeit it refers to the information relating to thecommission of cognisable offence – This information, if givenorally to an officer in-charge of the police station, is mandated toBbe reduced in writing – Information to be recorded in writing neednot be necessarily by an eye-witness, and hence, cannot be rejectedmerely because it is hearsay – S.154 does not mandate nor is thisrequirement manifest from other provisions of the Criminal Code –Lalita Kumari held that s.154 of the Criminal Code, in unequivocalCterms, mandates registration of FIR on receipt of all cognisableoffences, subject to exceptions in which case preliminary inquiryis required – Tapan Kumar Singh held that the FIR is not anencyclopaedia disclosing all facts and details relating to the offence.Code of Criminal Procedure, 1973 – FIR – Quashing of –DFIRs registered against the petitioner for describing Pir HazratMoinuddin Chishti, as an invader, terrorist and robber who hadcome to India to convert its population to Islam – Petitioner soughtquashing of FIRs – Held: The petitioner was an equal co-participant,rather than mere host – Three distinct elements that used to defineand identify ‘hate speech’, namely-content-based element, intent-Ebased element and harm-based element (or impact-based element),need to be evaluated before the Court – These have to be evaluated,before the Court form an opinion on whether an offence is madeout – Thus, it would not be appropriate at this stage to quash FIRsand stall the investigation into all the relevant aspects.F

Code of Criminal Procedure, 1973 – Multiple FIRs – InBabubhai v. State of Gujarat and others wherein the test to determinesameness of the FIRs has been elucidated as when the subject matterof the FIRs is the same incident, same occurrence or are in regardto incidents which are two or more parts of the same transaction –GIf the answer to the question is affirmative, then the second FIRneed not be proceeded with.

Words and Phrases – ‘ordre publique’, ‘public tranquillity’ and‘public order’ – discussed.

Disposing of the writ petition, the Court

HELD: 1. The Section 295A of the Penal Code encapsulatesof all three elements, namely; content-based element, intent-based element and harm-based element (or impact-basedelement), it refers to the content-based element when it refersto words either spoken or written, or by signs or visiblerepresentation or otherwise. It also refers to deliberate andmalicious intent on the part of the maker to outrage religiousfeeling of any class of citizens of India. The last portion of thesaid section refers to the harm-based element, that is, insult orattempt to insult religions or religious belief of that class.Similarly, subsection (2) to Section 505 refers to person makingpublishing or circulating any statement or report containingrumour or alarming news. Thereafter, it refers to the intent ofthe person which should be to create or promote and then refersto the harm-based element that is, feeling of enmity, hatred or ill-will between different religions, religious groups or castes orcommunities, etc. [Para 65][275-E-G]

2. In Bilal Ahmad Kaloo, this Court had drawn distinctionbetween sub-section (2) to Section 505 and clause (a) to Section153A of the Penal Code observing that publication is notnecessary in the latter while it is sine qua non under clause (2) ofSection 505. Clause (2) of Section 505 of the Penal Code cannotbe interpreted disjunctively and the words ‘whosoever makes,publishes or circulates’ are supplemented to each other. Theintention of the legislature in providing two different sections ofthe same subject vide single amending act would show that theycover two different fields of same colour. [Para 66][275-H;276-A-B]

3. Clauses (a) and (b) to sub-section (1) to Section 153A ofthe Penal Code use the words ‘promotes’ and ‘likely’ respectively.Similarly, Section 295-A uses the word ‘attempts’ and sub-section(2) to Section 505 uses the words ‘create or promote’. Word‘likely’ as explained, in opinion of this Court, convey the meaning,that the chance of the event occurring should be real and notfanciful or remote. Instigation must necessarily and specificallybe suggestive of the consequences. Sufficient certainty to incitethe consequences must be capable of being spelt out to be

EFGH

Aincitement. Further, it is for the prosecution to show and establishthat the standard has been breached by leading evidence, whichcan be both oral and documentary. ‘Promote’ does not imply meredescribing and narrating fact, or giving opinion criticising thepoint of view or actions of another person – it requires that thespeaker should actively incite the audience to cause publicBdisorder. This active incitement can be gauged by the content ofthe speech, the context and surrounding circumstances, and theintent of the speaker. However, in case the speaker is merelypointing out why certain person or group is behaving in aparticular manner, what are their demands and their point of view,Cor when the speaker interviews such person or group, it wouldbe passive delivery of facts and opinions which may not amountto promotion. [Para 67][276-C-H; 277-A-B]

4. An attempt is short of actual causation of crime and morethan mere preparation. In the context of ‘hate speech’, includingDthe offences related to promoting disharmony or feelings ofenmity, hatred or ill-will, and insulting the religion or the religiousbeliefs, it would certainly require the actual utterance of wordsor something more than thought which would constitute thecontent. Without actual utterance etc. it would be mere thought,and thoughts without overt act is not punishable. In the case ofE‘publication’, again mere thought would not be actionable, albeitwhether or not there is an attempt to ‘publish’ would depend onfacts. The impugned act should be more than mere preparationand reasonably proximate to the consummation of the offence,which has been interrupted. The question of intent would beFrelevant. On the question of the harm’s element, same test andprinciple, as applicable in the case of ‘likely’ would apply, exceptfor the fact that for intervening reasons or grounds public disorderor violence may not have taken place. [Para 68][277-G-H;278-A-C]G5. Having interpreted the relevant provisions, this Courtis conscious of the fact that primacy has been given to the preceptof ‘interest of public order’ and by relying upon ‘imminent lawlessaction’ principle, not given due weightage to the long-term impactof ‘hate’ speech as propaganda on both the targeted and non-targeted groups. This is not to undermine the concept of dignity,H

which is the fundamental foundation on the basis of which thecitizens must interact between themselves and with the State.Further, ‘hate speech’ meeting the criteria of ‘clear and presentdanger’ or ‘imminent lawless action’ would necessarily have long-term negative effect. Lastly, this Court is dealing with penal orcriminal action and, therefore, have to balance the right to expressand speak with retaliatory criminal proceedings. This Court is toalso prevent abuse and check misuse. It is not just penal threatalone which can achieve and ensure equality between groups.Dignity of citizens of all castes, creed, religion and region is bestprotected by the fellow citizens belonging to non-targeted groupsand even targeted groups. [Para 69][278-C-H]

6. Acronym FIR, or the First Information Report, is neitherdefined in the Criminal Code nor is used therein, albeit it refersto the information relating to the commission of cognisableoffence. This information, if given orally to an officer in-charge ofthe police station, is mandated to be reduced in writing.Information to be recorded in writing need not be necessarily byan eye-witness, and hence, cannot be rejected merely because itis hearsay. Section 154 does not mandate nor is this requirementmanifest from other provisions of the Criminal Code. Further,FIR is not meant to be detailed document containing chronicleof all intricate and minute details. [Para 73][280-E-F]7. This Court respectfully agrees with the ratio laid downin Arnab Ranjan Goswami. Ordinarily, this Court would haverelegated the petitioner and asked him to approach the concernedHigh Court for appropriate relief, albeit in the present casedetailed arguments have been addressed by both sides onmaintainability and merits of the FIRs in question and, therefore,been dealt with and rejected at this stage. [Para 77][284-F]

8. This Court has already reproduced relevant portions ofthe transcript of the debate anchored by the petitioner. It isapparent that the petitioner was an equal co-participant, ratherthan mere host. The transcript, including the offending portion,would form part of the ‘content’, but any evaluation wouldrequire examination and consideration of the variable ‘context’

Aas well as the ‘intent’ and the ‘harm/impact’. These have to beevaluated before the court can form an opinion on whether anoffence is made out. The evaluative judgment on these aspectswould be based upon facts, which have to be inquired into andascertained by police investigation. The fact, that the petitionerrelies upon his apology, which as per the respondents/informantsBis an indication or implied acceptance of his acts of commission.[Para 78][284-G-H; 285-A-B]

9. It is not the appropriate at this stage to quash the FIRsand thus stall the investigation into all the relevant aspects.However, observations of this Court on the factual matrix of theCpresent case in this decision should not in any manner influencethe investigation by the police who shall independently apply theirmind and ascertain the true and correct facts, on all material andrelevant aspects. Similarly, the competent authority wouldindependently apply its mind in case the police authorities seek

Dsanction, and to decide, whether or not to grant the same. Samewould be the position in case charge-sheet is filed. The courtwould apply its mind whether or not to take cognisance and issuesummons. By an interim order, the petitioner has enjoyedprotection against coercive steps arising out of and relating tothe program telecast on 15.06.2020. Subject to the petitionerEcooperating in the investigation, this Court directs that nocoercive steps for arrest of the petitioner need be taken by thepolice during investigation. In case and if charge-sheet is filed,the court would examine the question of grant of bail withoutbeing influenced by these directions as well as any findings ofFfact recorded in this judgment. [Para 79][285-C-F]

10. The decisions of this Court in Bhajan Lal, P.P. Sharmaand the earlier decision in R.P. Kapur which held that the HighCourt, in exercise of inherent jurisdiction, can quash proceedingsin proper case either to prevent abuse of process or otherwiseGto secure ends of justice. Application of the principles discussedin these cases depends on factual matrix of each case. Strict andrestricted as the requirements are, they are at this stage notsatisfied in the present case. [Para 80][285-F; 286-B]

11. The second prayer of the petitioner viz. multiplicity ofFIRs being registered in the States of Rajasthan, Maharashtra,Telangana, and Madhya Pradesh (now transferred to UttarPradesh) relating to the same broadcast. Both the sides agreedthat the issue is covered by the decision of this Court in T.T.Antony which has been followed in Arnab Ranjan Goswami’s case.Also, in Babubhai v. State of Gujarat and Others wherein the testto determine sameness of the FIRs has been elucidated as whenthe subject matter of the FIRs is the same incident, sameoccurrence or are in regard to incidents which are two or moreparts of the same transaction. If the answer to the question isaffirmative, then the second FIR need not be proceeded with.[Para 81][286-D; 290-B-C]

12. In the present case, this Court would like to follow theratio in T.T. Antony which is to the effect that the subsequentFIRs would be treated as statements under Section 162 of theCriminal Code. [Para 82][290-D-E]

13. This Court would also like to clarify that Section 179 ofthe Criminal Code permits prosecution of cases in the court withinwhose local jurisdiction the offence has been committed orconsequences have ensued. Section 186 of the Criminal Coderelates to cases where two separate charge-sheets have beenfiled on the basis of separate FIRs and postulates that theprosecution would proceed where the first charge-sheet has beenfiled on the basis of the FIR that is first in point of time. Principleunderlying section 186 can be applied at the pre-charge-sheetstage, that is, post registration of FIR but before charge-sheet issubmitted to the Magistrate. In such cases ordinarily the firstFIR, that is, the FIR registered first in point of time, should betreated as the main FIR and others as statements under Section162 of the Criminal Code. However, in exceptional cases and forgood reasons, it will be open to the High Court or this Court, asthe case may be, to treat the subsequently registered FIR as theprincipal FIR. However, this should not cause any prejudice,inconvenience or harassment to either the victims, witnesses orthe person who is accused. This Court has clarified the aforesaid

Aposition to avoid any doubt or debate on the said aspect.[Para 84][292-A-D]

14. In view of the findings, this Court accepts the prayermade in the last amended writ petition and transfer all FIRs listedto police station Dargah, Ajmer, Rajasthan, where the first FIRBwas registered. This Court does not find any good ground orspecial reason to transfer the FIRs to Noida, Uttar Pradesh.Statement of the complaint/informant forming the basis of thetransferred FIRs would be considered as statement under Section162 of the Criminal Code and be proceeded with. [Para 85][292-E-F]C

15. This Court declines and reject the prayer of thepetitioner for quashing of the FIRs but have granted interimprotection to the petitioner against arrest subject to his joiningand cooperating in investigation till completion of theinvestigation. However, the prayer of the petitioner for transferDof all pending FIRs in relation to and arising out of the telecast/episode to P.S. Dargah, Ajmer, where the first FIR was registeredis accepted. On the third prayer, this Court has asked theconcerned states to examine the threat perception of thepetitioner and family members and take appropriate steps as mayEbe necessary. [Para 87][293-A-C]

Ramji Lal Modi v. State of U.P. AIR 1957 SC 620; KedarNath Singh v. State of Bihar, (1970) 2 SCC 780 : [1971]2 SCR 446; Madhu Limaye v. Sub-DivisionalMagistrate, Monghyr and Others,(1970) 3 SCC 746 :F[1971] 2 SCR 711 – followed.

Shreya Singhal v. Union of India (2015) 5 SCC 1 :[2015] 5 SCR 963; Anuradha Bhasin v. Union of Indiaand Others (2020) 3 SCC 637; Modern Dental Collegeand Research Centre and Others v. State of MadhyaPradesh and Others (2016) 7 SCC 353 : [2016] 3 SCR579; Maneka Gandhi v. Union of India (1978) 1 SCC248 : [1978] 2 SCR 621; State v. Mohd. Yakub (1980)3 SCC 57; Lalita Kumari v. Government of UttarPradesh and Others (2014) 2 SCC 1; State of H.P. v.Pirthi Chand and Another, (1996) 2 SCC 37 : [1995] 6Suppl. SCR 29; Arnab Ranjan Goswami v. Union of

India and Others (2020) SCC Online SC 462; T.T.Antony v. State of Kerala and Others, (2001) 6 SCC181: [2001] 3 SCR 942 – relied on.

P.K. Chakravarty v. The King AIR 1926 Cal.1133 –approved.

Her Majesty the Queen v. James Keegstra, (1990) 3SCR 697; Balwant Singh and Another v. State of Punjab(1995) 3 SCC 214 : [1995] 2 SCR 411; Bilal AhmedKaloo v. State of A.P., (1997) 7 SCC 431 : [1997] 3Supp. SCR 327; Brij Bhushan and Another v. State ofDelhi, AIR 1950 SC 129; Lalai Singh Yadav v. State ofUttar Pradesh, AIR 1962 SC 955; Mahendra SinghDhoni v. Yerraguntla Shyamsundar and Another, (2014)2 SCC 1 : [2013] 14 SCR 713; Manzar Sayeed Khanv. State of Maharashtra and Another, (2017) 7 SCC760 : [2017] 3 SCR 763; Queen-Empress v. BalGangadhar Tilak, (2014) 11 SCC 477 : [2014] 4 SCR446; Ramesh S/o Chhotalal Dalal v. Union of India andOthers, (1988) 1 SCC 668 : [1988] 2 SCR 1011;Romesh Thappar v. State of Madras, AIR 1950 SC 12;State of Bihar and Another v. P.P. Sharma, IAS andAnother, 1992 Supp. (1) SCC 222; State of Haryana v.Bhajan Lal, 1991 Supp (1) SCC 335; State of U.P. v.O.P. Sharma, (1996) 7 SCC 705 : [1996] 2 SCR 236;Superintendent of Police, CBI and Others v. TapanKumar Singh, (2003) 6 SCC 175: [2003] 3 SCR 485;Superintendent, Central Prison, Fatehgarh and Anotherv. Dr. Ram Manohar Lohia, AIR 1960 SC 633; Virendra/K.Narendra v. State of Punjab and Another AIR 1957SC 896; State of Orissa v. Saroj Kumar Sahoo (2005)13 SCC 540 : [2005] 5 Suppl. SCR 548; ChintamanRao v. State of Madhya Pradesh, AIR 1951 SC 118;State of Madras v. V.G. Row, AIR 1952 SC 196; N.B.Khare (Dr.) v. State of Delhi AIR 1950 SC 211;Mohammed Faruk v. State of Madhya Pradesh andOthers (1969) 1 SCC 853 : [1970] 1 SCR 156; ArunGhosh v. State of West Bengal (1970) 1 SCC 98 : [1979]1 SCR 955; Justice K. S. Puttasamy v. Union of India

(2017) 10 SCC 1 : [2017] 10 SCR 569; SubramanianSwamy v. Union of India and Others (2016) 7 SCC 221: [2016] 3 SCR 865; Rustom Cowasjee Cooper v. Unionof India (1970) 2 SCC 298 : [1971] 1 SCR 512; BennettColeman & Co. v. Union of India (1972) 2 SCC 788 :[1973] 2 SCR 757; A.K. Gopalan v. State of MadrasAIR 1950 SC; Charu Khurana and Others v. Union ofIndia and Others (2015) 1 SCC; India Young LawyersAssociation and Others (Sabarimala Temple, In RE.) v.State of Kerala and Others (2019) 11 SCC 1; RamJethmalani and Others v. Union of India and Others(2011) 8 SCC 1 : [2011] 8 SCR 725; Noise Pollution(V), In Re. (2005) 5 SCC 733 : [2005] 1 Suppl. SCR624; Indira Sawhney v. Union of India, (1992) Supp. 3SCC 217; Amita v. Union of India, (2005) 13 SCC 721;Ebrahim Suleiman Sait v. M.Mohammed and Another(1980) 1 SCC 398; Aman Kumar v. State of Haryana(2004) 4 SCC 379; Dharma Rama Bhagare v. State ofMaharashtra,(1973) 1 SCC 537; Babubhai v. State ofGujarat and Others, (2010) 12 SCC 254; PrakashKumar Alias Prakash Bhutto v. State of Gujarat, (2005)2 SCC 409:[2005] 1 SCR 408 – referred to.

Bhagwati Charan Shukla s/o. Ravishankar Shukla v.Provincial Government, C.P. & Berar, AIR 1947 Nagpur1; Devi Sharan Sharma v. Emperor, AIR 1927 Lah 594;Emperor v. Sadashiv Narayan Bhalerao, AIR 1947 PC82; Gopal Vinayak Godse v. Union of India, AIR 1971Bom 56; Pravasi Bhalai Sangathan v. Union of Indiaand Others, AIR 1926 Calcutta 1133; R. v. Zundel, 21R. P. Kapur v. State of Punjab, ILR (1898) 22 Bombay112; Veeda Menez v. Yusuf Khan and Another, 1966SCR 123; Neelam Mahajan v. Commissioner of Policeand Others, 1993 (27) DRJ 357; Lalai Singh Yadavand Another v. State of Uttar Pradesh 1971 Cri LJ 1773(FB) (Allahabad); P.K. Chakravarty v. The King, AIR1926 Cal. 1133 – referred to.

Niharendu Dutt Majumdar v. The King-Emperor, 1942FCR 38; K.A. Abbas v. Union of India and Another

1942 FCR 38;Saskatchewan (Human RightsCommission) v. Whatcott, [2013] 1 SCR 467; Canada(Human Rights Commission) v. Taylor, (1990) 3 SCR892; Pat Eatock v. Andrew Bolt (2011) FCA 1103; Mr.Justice Holmes in Schenek v. United States, 249 U.S.47 (52); Brandenburg v. Ohio 395 U.S. 444 (1969);Dennis v. United States 341 U.S. 494 O’Neill at (160)– (161) and Hill v. Church of Scientology of Toronto,(1995) 2 S.C.R. 1130 (117) and (120); Beauharnais v.Illinois,343 U.S. 250 (1952); Tillmanns Butcheries PtyLtd. v. Australasian Meat Industry Employees’ Union(1979) 27 ALR 380 – referred to.

Hate Speech in Constitutional Jurisprudence: AComparative Analysis’ by Michel Rosenfeld, 24 CordozoL. Rev. 1523 2002-2003;‘Hate Speech inConstitutional Jurisprudence: Comparative Analysis’by Michel Rosenfeld, 24 Cordozo L. Rev. 1523 2002-2003; Andrew F. Sellers, Defining Hate Speech,published by Berkman Klein Center for Internet &Society at Harvard University; Words that Wound: Atort Action for Racial Insults, Epithets, and Name-Calling’, 17 Harv. C.R.- C.L.L.rev. 133 (1982);‘PublicResponse to Racist Speech: Considering the Victim’sStory’, 87 Mich.L.Rev. 2320 (1989); Free Speech andthe Development of Liberal Virtues: An Examination ofthe Controversies Involving Flag Burning and HateSpeech’, 52 U.Miami K. Rev. 733 (1998); Hate Speechin Constitutional Jurisprudence: ComparativeAnalysis by Michel Rosenfeld, 24 Cardozo L. Rev. 15232002-2003; Myra Mrx Ferree, William A. Gamson,Jurgen Gerhards and Dieter Rucht, ‘Four Models ofthe Public Sphere in Modern Democracies,’ publishedin THEORY AND SOCIETY, Vol. 31, No. 3 (June, 2002),pp. 289-324;George Bernard Shaw, Socialism offMillionaires, 16(1901); Joseph Blocher, ‘Free Speechand Justified True Belief’, Harvard Law Review, Vol.133, No.2, December 2019; Internet Encyclopaediaof Philosophy, Toleration by Andrew Fiala, ISSN 2161-0002; Marjoka Van Doorn, the Nature of Tolerance

[2020] 14 S.C.R.

Aand the Social Circumstances in Which itEmerges,Current Sociology Review, 2014, Vol. 62(6)905-927; Sam Hariss, The End of Faith; Michael SandelDemocracy’s Discontent (1998); John Rawls, Theoryof Justice (1971); The Wounded Vanity of Governmentsin ‘Republic of Rhetoric: Free Speech and theBConstitution of India’ by Abhinav Chandrachud,Penguin Books India (2017) – referred to.

Case Law Reference

1995(2) SCR 411C[1997] 3 Supp. SCR 327[1990] 3 SCR 697[1971] 2 SCR 446[2013] 14 SCR 713D[2017] 3 SCR 763[2014] 4 SCR 446[1988] 2 SCR 1011[2015] 5 SCR 963E[1995] 6 Suppl. SCR 29[1996] 2 SCR 236 [2003] 3 SCR 485 [2001] 3 SCR 942F[2005] 5 Suppl. SCR 548[1971] 2 SCR 711 [1970] 1 SCR 156G[1979] 1 SCR 955[2016] 3 SCR 579 [2017] 10 SCR 569[2016] 3 SCR 865H[1978] 2 SCR 621

(Under Article 32 of The Constitution of India)

Tushar Mehta, S.G., S.V. Raju, ASG, Vinod Diwakar, AAG, SidharthLuthra, Dr. Manish Singhvi, Sushil Kumar Jain, Sr. Advs., Vivek Jain,Mrinal Bharti, Samarth Krishna Luthra, Ms. Suchitra Kumbhat, Ms.Shubhangni Jain, Pankaj Singhal, Manish Shekari, Nitin Sharma, Ms.Pallavi Garg, Kanu Agrawal, B.V. Balram Das, Sachin Patil, RahulChitnis, Geo Joseph, D. K. Devesh, Apurv Singhvi, S. Udaya KumarSagar, Ms. Swati Bhardwaj, Sarvesh Singh Baghel, B.N. Dubey, Ms.Shivranjani Ralawata, Puneet Jain, Harsh Jain, Harshit Khanduja, Ms.Christi Jain, Aniruddh Joshi, Umang Shankar, Rizwan Merchant, S.Hariharan, Ms. Jaikriti S. Jadeja, Ms. Priya Puri, Shubail Farook, FaisalFarook, Kshitij Kumar, Ranjay Dubey, Ibad Mustaq, Ms. Akanksha Rai,Fuzail Ahmad Ayyubi, Ejaaz N. Shaikh, Vatsalya Vigya, Shakil AhmedSyed, Mohd. Parvez Dabas, Uzmi Jameel Husain, Daanish Ahmed Syed,Prem Chandra, Rameshwar Prasad Goyal, Advs. for the appearingparties.

The Judgment of the Court was delivered by

SANJIV KHANNA, J.

1. Applications for intervention are allowed.

2. The writ petitioner, Amish Devgan, is journalist who, it isstated, is presently the managing director of several news channels ownedand operated by TV18 Broadcast Limited, including News18 UttarPradesh/Uttarakhand, News18 Madhya Pradesh/ Chhattisgarh andNews18 Rajasthan.

3. The petitioner hosts and anchors debate shows ‘Aar Paar’ onNews18 India and ‘Takkar’ on CNBC Awaaz. On 15[th] June, 2020, ataround 7:30 p.m., the petitioner had hosted and anchored debate onthe enactment[1] which, while excluding Ayodhya, prohibits conversion

1 The Places of Worship (Special Provisions) Act, 1991.

Aand provides for maintenance of the religious character of places ofworship as it existed on 15[th] August, 1947. Some Hindu priestorganisations had challenged vires of this Act before the Supreme Court,and reportedly Muslim organization had filed petition opposing thechallenge.

B4. Post the telecast as many as seven First Information Reports(FIRs) concerning the episode were filed and registered against thepetitioner in the States of Rajasthan, Telangana, Maharashtra and MadhyaPradesh. The details of the FIRs are as under:

The gist of the FIRs is almost identical. The petitioner, while hostingthe debate, had described Pir Hazrat Moinuddin Chishti, also knownas Pir Hazrat Khwaja Gareeb Nawaz, as “aakrantak Chishti aya...aakrantak Chishti aya... lootera Chishti aya... uske baad dharambadle”. Translated in English the words spoken would read – “TerroristH

Chishti came. Terrorist Chishti came. Robber Chishti came -thereafter the religion changed,” imputing that ‘the Pir HazratMoinuddin Chishti, terrorist and robber, had by fear and intimidationcoerced Hindus to embrace Islam.’ It is alleged that the petitioner haddeliberately and intentionally insulted Pir or pious saint belonging tothe Muslim community, revered even by Hindus, and thereby hurt andincited religious hatred towards Muslims.

5. The petitioner, as per the writ petition, claims that post thetelecast he was abused and given death threats on his phone, Twitter,Facebook and other social media platforms. Fearing for his life and limb,the petitioner had filed FIR No. 539 of 2020 dated 20th June, 2020 atP.S. Sector-20, Noida, Uttar Pradesh, and submitted the links to thethreats received through social media platforms.

6. On or about 22nd June, 2020, the present writ petition was filedunder Article 32 of the Constitution of India with an application for interimrelief. This writ petition came up for hearing on 26th June, 2020 wherebynotice was issued with direction to the petitioner to implead theinformants in the respective FIRs/complaints. An interim order was passeddirecting that till the next date of hearing there would be stay on furthersteps/action on the FIRs mentioned in the writ petition, relating to thetelecast dated 15th June, 2020, and the petitioner was protected againstany coercive process arising out of or relating to the said FIRs.

7. Pursuant to the aforesaid liberty, the writ petition was amendedto implead the complainants. Thereafter, the writ petition was amendedon second occasion. The prayers made in the last amended writ petitionto this Court are:

(a)for issue of writ of certiorari, quashing the complaints/FIRsreferred to above or any other FIR or criminal complaintwhich may be filed thereafter relating to the telecast inquestion dated 15th June, 2020;

(b)strictly in the alternative, transfer and club the FIRsmentioned above or elsewhere in the country with the firstGFIR, i.e. FIR No. 78, P.S. Dargah, Ajmer, Rajasthan;

(c)issue writ of mandamus to the effect that no coerciveprocess shall be taken against the petitioner in the FIRs solodged or subsequent complaint or FIRs on the subjectbroadcast; and

218SUPREME COURT REPORTS

A(d)direct the Union of India to provide adequate safety andsecurity to the petitioner, his family members and hiscolleagues at various places in the country.”

8. The petitioner, in his submissions, claims that he has faith inBanda Nawaz Hazrat Khwaja Moinuddin Chishti and has also goneBon Ziyarat pilgrimage to Ajmer Sharif to offer respects and to worship.Expressing regret, the petitioner claims that the attributed words wereuttered inadvertently and by mistake; in fact, the petitioner wanted torefer to Alauddin Khilji and not Gareeb Nawaz Khwaja MoinuddinChishti. Realising his mistake and to amend the inadvertent error, and todispel doubts and vindicate himself, the petitioner had promptly issued aCclarification and an apology vide tweet dated 17th June 2020. videowith similar clarification and apology was also telecast by the newschannel on the very same day. Contention of the petitioner is that in awhirl, he had taken the name of Chishti though he had no such intention,and he laments his lapse as he did not wish to hurt anybody. Accordingly,Dhe had apologised to anyone who had been hurt. In addition, number ofsubmissions have been made by the petitioner, which are summarised asunder:

•Multiple FIRs arising out of the same incident are abuse oflaw, and violate fundamental rights of the petitioner andEfreedom of press, causing chilling effect on the freedomof speech and expression.

•The FIRs are meant to harass and intimidate the petitioner;no part of ‘cause of action’ has arisen in the areas wherethe FIRs were lodged.

F•On interpretation of Sections 153A, 295A, and 505(2) ofthe Indian Penal Code, 1860 (in short, the ‘Penal Code’)and Section 66-F of the Information Technology Act, 2000,(in short, the ‘IT Act’), no offence whatsoever can be madeout; the allegations are based upon utterances in isolationGby picking up select words and not on the programme as awhole; the petitioner did not have any malicious intent andmens rea to outrage religious beliefs and feelings; theprogramme has to be judged from the standard of areasonable and strong-minded person and at best the wordsexhibit carelessness without any deliberate and maliciousH

intent, which fall outside the ambit of Sections 153A, 295AAand 505(2) of the Penal Code.

•In the alternative, it is submitted that case of trifle orminor harm is made out, which would be covered by Section95 of the Penal Code.

•Again, in the alternative, it is submitted that all the FIRsshould be clubbed and transferred to Noida or Delhi.

Counsel for the petitioner has relied upon the following decisionsin support of his contention – Arnab Ranjan Goswami v. Union ofIndia and Others,[2] Balwant Singh and Another v. State of Punjab,[3]Bhagwati Charan Shukla s/o. Ravishankar Shukla v. ProvincialGovernment, C.P. & Berar,[4]Bilal Ahmed Kaloo v. State of A.P.,[5]Brij Bhushan and Another v. State of Delhi,6 Devi Sharan Sharmav. Emperor,[7]Emperor v. Sadashiv Narayan Bhalerao,[8]GopalVinayak Godse v. Union of India,[9]Her Majesty the Queen v. JamesKeegstra,[10]Niharendu Dutt Majumdar v. The King-Emperor,[11]K.A.Abbas v. Union of India and Another,[12] Kedar Nath Singh v. State ofBihar,[13] Lalai Singh Yadav v. State of Uttar Pradesh,[14] LalitaKumari v. Government of Uttar Pradesh and Others,[15] MahendraSingh Dhoni v. Yerraguntla Shyamsundar and Another,[16] ManzarSayeed Khan v. State of Maharashtra and Another,[17 ]P.K.Chakravarty v. The King,[18] Pravasi Bhalai Sangathan v. Union of

2 (2020) SCC Online SC 4623 (1995) 3 SCC 2144 AIR 1947 Nagpur 15 (1997) 7 SCC 4316 AIR 1950 SC 1297 AIR 1927 Lah 5948 AIR 1947 PC 829 AIR 1971 Bom 5610 (1990) 3 SCR 69711 1942 FCR 3812 (1970) 2 SCC 78013 AIR 1962 SC 95514 1971 Crl.L.J. 177315 (2014) 2 SCC 116 (2017) 7 SCC 76017 (2007) 5 SCC 118 AIR 1926 Calcutta 1133

AIndia and Others,[19] Queen-Empress v. Bal Gangadhar Tilak,[20] R.v. Zundel,[21] R. P. Kapur v. State of Punjab,[22] Ramesh S/o ChhotalalDalal v. Union of India and Others,[23] Ramji Lal Modi v. State ofU.P.,[24] Romesh Thappar v. State of Madras,[25] Saskatchewan(Human Rights Commission) v. Whatcott,[26] Shreya Singhal v. Unionof India,[27] State of Bihar and Another v. P.P. Sharma, IAS andBAnother,[28]State of H.P. v. Pirthi Chand and Another,[29]State ofHaryana v. Bhajan Lal,[30]State of U.P. v. O.P. Sharma,[31] VeedaMenez v. Yusuf Khan and Another,[32] Neelam Mahajan v.Commissioner of Police and Others,[33] Superintendent of Police, CBIand Others v. Tapan Kumar Singh,[34] Superintendent, Central Prison,CFatehgarh and Another v. Dr. Ram Manohar Lohia,[35] T.T. Antonyv. State of Kerala and Others,[36] and Virendra/ K.Narendra v. Stateof Punjab and Another.[37]

9. The prayers made by the petitioner are opposed by the statesof Maharashtra, Rajasthan, Telangana and Uttar Pradesh, and the privateDrespondents. The informants submit that the petitioner is habitualoffender and has on numerous earlier occasions offered similar apologies.The petitioner had twice repeated the words ‘aakrantak Chishti aya,’followed by the words ‘lootera Chishti aya’. This assertion on threeoccasions conveys and reflects the intention of the petitioner, who hadEdescribed Khwaja Moinuddin Chishti as an invader, terrorist and robberwho had come to India to convert its population to Islam. The pretext of

19 (2014) 11 SCC 477

20 ILR (1898) 22 Bombay 112

21 [1992] 2 SCR 731

22 AIR 1960 SC 866

F23 (1988) 1 SCC 66824 AIR 1957 SC 62025 AIR 1950 SC 124

26 [2013] 1 SCR 467

27 (2015) 5 SCC 128 1992 Supp. (1) SCC 22229 (1996) 2 SCC 37G30 1991 Supp (1) SCC 33531 (1996) 7 SCC 70532 1966 SCR 123.33 1993 (27) DRJ 357.

34 (2003) 6 SCC 175

35 AIR 1960 SC 633

36 (2001) 6 SCC 181H37 AIR 1957 SC 896

inadvertent mistake is an afterthought and sham and unreal defence.Respondent No.9, namely, Saber Chausa Mohd. Naseer, in his affidavithas stated that the name of Khwaja Moinuddin Chishti as Sufi Saintwas taken by one of the panelists when the topic of conversion wasbeing debated. The panelist had gone on record to state that theconversions at the time of Khwaja Moinuddin Chishti happened formoral, religious and spiritual reasons and the devotees and followers ofKhwaja Moinuddin Chishti were inspired by his teachings. The affidavitalso states that the discussion at that time was not in relation to Mughalsor with reference to Aurangzeb or Allaudin Khilji. Further, the petitionerhad tampered with the broadcast of the debate uploaded on YouTube on16th June, 2020, by deliberately deleting the part wherein the petitionerhad used the word ‘aakrantak Chishti’ (twice) and ‘lootera Chishti’.These acts of sieving out of offensive portions, and the subsequent apologywere after the petitioner had learnt about the protests and registration ofthe FIRs at Ajmer and other places. The respondents claim that theapology is not genuine but an act of self-defence. FIR at Ajmer wasregistered on 16th June, 2020 at 11:58 p.m. whereas the first apology(via Twitter) of the petitioner appeared on 17th June, 2020, at 12:12a.m., i.e., nearly 30 hours after the live telecast of the show whereoffensive words were uttered by the petitioner.

10. The points raised by the respondents can be summarised asunder:

•The petition ought to be dismissed as Article 32 has beeninvoked in cavalier manner. Remedy under section 482of the Code of Criminal Procedure, 1973 (hereafter referredto as, ‘Criminal Code’) was available to the petitioner.[38]

•The offending words were uttered thrice by the petitioner,which shows his ill intention.[39] The intention of the petitionerwas to create disharmony between the two faiths/groupsand to incite disorder.[40]

•The debate was staged program, where no experts orGhistorians were on the panel; the program was staged tomalign the Muslims and to promote hatred.[41]

38 I.A. by Haji Syed Chisti, Khadim of Dargah; RESPONDENT NO. 9,

39 I.A. by Haji Syed Chisti, Khadim of Dargah; Respondent no. 9, Respondent no. 6

40 I.A. by Haji Syed Chisti, Khadim of Dargah

41 I.A. by Sajid Noormohammad Sheikh r/o Nashik, Maharashtra

A•The themes of the programs hosted by the Petitioner arecommunal.[42]

•The conduct of the petitioner was against norms ofjournalistic standards.[43]

•Petitioner uploaded an edited version of the video onBYoutube, where he had removed the part containing theoffensive speech. This was done after FIR was lodged as

an attempt to tamper/destroy the evidence.[44]

•The Petitioner claimed that inadvertently he utteredC“Chishti” in place of “Khilji”, but there is no relation betweenthese two historical figures. Khwaja Chishti came to Indiain 1136 when Md. Ghori was defeated by Prithvi RajChauhan for the first time in the battle of Tarain. Whereas,Khiljis ruled in India from 1290 to 1320. So Khilji andKhwaja Chishti were neither contemporaries nor related toDeach other.[45]

•Apology by the Petitioner was an afterthought. It cameonly after the registration of FIR.[46] The petitioner did notapologize initially and let the followers of Khwaja Chishtibe outraged, in order to gain popularity.[47]E

•The two persons, whose credentials the petitioner hasmentioned in the petition, to press that the members of thecommunity have forgiven him, is false. These two peopleas TV personalities and nowhere represent the devoteesof Khwaja Chishti.[48]

•FIR need not have an encyclopaedia of the event. Even ifonly material facts have been disclosed, it is enough tocontinue with criminal proceedings.[49]

G42 Respondent no. 9, Respondent no. 1043 Respondent no. 6

44 Respondent no. 9

45 Respondent no. 9

46 I.A. by Haji Syed Chisti, Khadim of Dargah; Respondent no. 9, 47 I.A. by Haji SyedChisti, Khadim of Dargah; Respondent no. 9, 48 Respondent no. 949 Respondent no. 9H

•Some communal elements in Maharashtra, after theAbroadcast of the utterances by the Petitioner, used thisopportunity and started circulating this video to spreadhatred.[50]

•Article 19(1)(a) of the Constitution is subject to expresslimitations under Article 19(2) of the Constitution.

•The police should be permitted to file report under Section173 of the Criminal Code and court should frame thecharges. Then only the petitioner would get the opportunityto defend himself in the court.[51]

•Section 19 of the Cable TV (Regulation) Act prohibits cableTV network to broadcast any content that promotes hateor ill will.[52]

•The broadcast was throughout the nation and thus cause ofaction arose in Ajmer too, where the intervener resides andserves as khadim to Dargah of Khwaja Chishti.

•Respondent no. 5, State of Uttar Pradesh,[53] reiterated thefacts of the FIR lodged at the instance of informant AmishDevgan. Also, it has been mentioned that one FIR whichwas filed in Jabalpur against the Petitioner Amish Devganwas transferred by Jabalpur police to Gautam Budhh Nagar.E•State of Rajasthan[54] submitted:

(a)apology tendered by the petitioner would not dilutethe offence. Also, it was after 30 hours of thebroadcast of the show.

(b)Allegations and counter allegations of facts are matterof trial.

(c)Transfer all FIRs to Ajmer as one of the FIRs isthere, and matter also relates to Ajmer.

50 Respondent no. 9

51 Respondent no. 9 and Respondent no. 6

52 I.A. by Sajid Noormohammad Sheikh r/o Nashik, Maharashtra

53 sworn by DSP/ ASST. Commissioner, Noida

54 Respondent no. 3

A•State of Telangana[55] submitted:

(a)Complainants/informants came to the P.S.Bahadurpura, Hyderabad and made complaint thatthe petitioner has dishonoured Khwaja Chishti.

(b)Asper State of Orissa v. Saroj Kumar Sahoo,[56]Bprobabilities of prosecution version can’t be deniedat the early stages.

(c)Normal course of investigation cannot be cut-shortin casual manner. Also, the accused has remedyunder 482 of the Criminal Code.

The Show and Debate

11. Before we examine the first prayer, we must take notice ofthe fact that the transcript filed by the petitioner with the original writpetition and the amended writ petitions is not the true and correctDtranscript. As per these transcripts the petitioner is stated to have onlyuttered the words “Akranta Chishti came... Lootera Chishti cameafter then religion changed”. However, in the transcript filed by thepetitioner on 8th July, 2020, it is accepted that the petitioner had used thewords ‘Akranta Chishti’ not once but twice. This is the correct version.The petitioner accepts that the topic of debate was relating to theEchallenge posed by Hindu priest organisation to the Places of Worship(Special Provisions) Act, 1991, according to which the de facto positionof religious places as on 15th August, 1947 could not be changed oraltered, though Ayodhya was kept out of the ambit of the Act, and thispetition was opposed by Muslim organisation stating that if notice isFissued there would be widespread fear among the Muslim community.After the prelude initiating the debate, the petitioner, as per the transcript,had stated “Today, this will be the key issue of the debate... AyodhyaVerdict delivered, Why Kashi-Mathura issue left unresolved?...asking Hindu Priests!”. The petitioner as per the transcript had thendeclaimed:G“Now analyse the legal position of Kashi Mathura issue...HinduPriest organisation has reached Supreme Court against Places of Worship(Special Provisions) Act, 1991...According to this Act of 1946, the de

55 Respondent no. 4H56 (2005) 13 SCC 540

facto position of any religious place could not be altered in anycondition...According to Act mosque could not be changed into templeor temple could not be changed into mosque...This is impossible...TheAyodhya issue was out of this ambit as it was already in litigation. TheAyodhya issue was 100 year old dispute...The priest organisation saysthat Places of Worship (Special Provisions) Act, 1991 is against theHindus...Today we are not debating the issue of Kashi or Mathura...weare debating the Places of Worship (Special Provisions) Act, 1991...Whatchanges should be made in this Act?...if the arguments of Hindu Prieststo be believed.”

12. We must also at this stage itself reproduce portions of thedebate, including the portion which the petitioner seeks to rely upon:

“I don’t want to make this debate hot topic between Hindu-Muslim community...I would like to discuss the provisions of thisAct...First, I am going to ask questions to Mahant Naval KishoreDas Ji...Naval ji...Why do you want change to the provisions ofthis Act?...The indication is clear...Ayodhya Jhanki Hai...MathuraKashi Baaki Hain...This was the slogan of RSS, VHP and BJP...

xx xx xx

Atiq-Ur-Rehman: Amish Ji, I’m welcoming your statements thatyou said you don’t want the ‘Hindu- Muslim’ saga on the matter.And I pay respect to Mahant Ji as well. He put his thoughts in awell- behaved manner. The Mahant Ji raised the question; ‘a molein the thief’s beard’ (darta wo hai jinki dadi me tinka hota hai).

xx xx xx

Amish Devgan:

Point Number-2: You have said that with clever step...Atiq-Ur-Rehman Ji I’ve listened your statement, you talked around 2-2½inutes. You said that the verdict on the Ayodhya case came on theboard cleverly. But, I want to refresh your memory; in the year of1991-92 when there had the slogan for the Ayodhya in the air theSant Samaj, VHP, Rashtriya Swayamsevak Sangh and authenticpersons of the Hindu Samaj used to say Ayodhya jhanki hai, Kashi-Mathura baki hai.

So the demand is very old. The wish is too old. But when theAyodhya’s wish was fulfilled then definitely after that verdict you

are raising the question on your own ways. That is your take.Now I’m moving to Dr. Sudhandhu Trivedi, Jamiat Ulema-e-Hindare saying that if these types of petitions to be heard then theewill be danger to the Muslim worship places.

xx xx xx

Amish Devgan: Dr. Trivedi, you made your point. I’m moving toMaulana Ali Kadri, he is senior guy. Kadri Sahab; I’m asking youstraight. The Saints/Pujaris/ Purohits/Mahants have constitutionalright that they file the writ in the Supreme Court against the 1991Act. And they have right to talk about the Kashi and Mathura.But, if there is the Dukan is the convcern, Dar ki Dukan to pahlehi khol di. In that petition had said if there was notice on it theMuslims would feel that their worship places were not safe. Theyfeel fear. Jamiat Ulema-e-Hind’s petition says then who is openingthe Dar ki Dukan. The Dar ki Dukan has already opened. This isthe constitutional right?

xx xx xx

Amish Devgan: Ali Qadri Sahab, why the Jamiat Ulema- e-Hindis hiding its failure? Why the organisation is saying that there willbe fear in the Muslims for their worship places due to the notice?EIf you want to show Dr. Sudhandhu Trivedi’s party’s failure andwish to expose the RSS and VHP, then please tell in 20 seconds.

xx xx xx

Amish Devgan: Mr. Vinod Bansal, there is symbol of Om isshowing behind you. Om, the symbol of peace. But Maulana AliFKadri is saying; you want to spread Ashanti. You have defeatedby corona and now seeking base from the Mathura-Kashi issues.After these issues you will raise the Jama Masjid matter and TajMahal will be in your hit list.

xx xx xx

Amish Devgan: Then how the Kashi-Mathura issue came intolimelight?

Vinod Bansal: There is clearly written that the 1947’s status tobe maintained. Despite of that why the properties had transferredto the Waqf Board in large level? Waqf Board asked properties

on the name of Mazars, Mosques and Graveyards several times.Is all the things are belong to their father (Ye sara inka, inke Baapka hai?) This is not the right way.

The first thing is, if the law had implemented, it should complete ina shape.

And the second one is...is it not true that thousands of the Hindutemples had demolished? The Hindu had converted and humiliatedin large scale. There should be needed to rectify the historicalwrongs. Why they are trying to escape from the reality.

Amish Devgan: The historical wrong should rectify. Thoughseveral historians said the Eidgah and Krishan Janam Bhoomi inMathura are situated adjacent to each other. Several historiansclaimed that in the 17[th] century emperor Aurangzeb haddemolished temple and had built mosque on the very sameplace. VHP’s Giriraj Kishor also said the same thing that on theplace where the mosque is situated in Mathura, the Lord Krishnanhad birthed on the same place. Besides that, he said several things.Now I want to move to Shadab Chauhan. He wishes to saysomething. Please go ahead.

Shadab Chauhan: Peace Party pay respect to the Constitutionof India and the social harmony. So, we have filed the curativepetition for the justice. Now we will talk about Kashi and Mathura.After defeating from the coronavirus, government is trying to divertthe nation’s attention by raising the issue of Kashi and Mathura.

And now I’m saying with the challenge that there should not beany ‘nanga-nach’ like the 1992, on the name of worship place.We respect the 1991 law. I deeply said that my elder brotherSudhanshu Trivedi Ji said, that the temples which had built afterAugust 15, 1947, will be removed. Are you talking aboutdemolishing the temples? The Ram Mandir which will beconstructed, have you will demolish it as well?

And the second thing is, the Ram Mandir verdict came on basisof the faith and we are not satisfied with the decision. So wemoved to the court. This is the matter of justice not of any religion’sissue. Now we will not allow any goon to insult the saffron colour.The terror was made with demolishing the Babri Masjid.

Amish Devgan: What you said? Repeat it. The insult of the saffroncolour...we...any...what did you say?

Shadab Chaudhary: Listen...insult of the saffron colour. We don’tallow any goon to demolish any worship place and don’t allow killthe innocents.

Amish Devgan: No...You can’t say goons to the Sant Samaj. Iobjected completely. Shadab Chauhan you said wrong thing.You said India’s Sant Sama/Purohit- Pande of the country aregoons.

Mahant Nawal Kishor Das: These people should apologise. Youinvite such people for the debate? They didn’t pay respect to theirancestors too. Due to the fear they converted in the other religion.

Shadab Chauhan: They are goons.

xx xx xx

Amish Devgan: You are wrong...we do not have any problemwith Muslims...we do not have problems with Abdul Kalam, wedo not have problem with Dara Shikoh but yes...we do haveproblem with AURANGZEB...being Hindustani we should haveproblems with Aurangzeb.

xx xx xx

Maulan Qadri: I will answer Sudhandhu Sahab...Sudhanshu hassaid that the Ram Mandir decision was not merely based onfaith...A few days before today, Shivlinga got excavated there,after that I do not want to name anything else and there was anFidol of someone there...So it should be decided if there was aRam temple or Jain temple, it can be disseminated to you...theexcavation says another story...if talk about name of ShadabChauhan or anybody else...we are proud to said that after KhawajaMoinuddin Chisti...a lot of Indians converted to Islam and sawMoinuddin’s execution and converted to Islam by seeing hisGlife...but not all the Muslims who are in India are converts.

Amish Devgan: Maulana sahib, you took the name ofChishti...Now tell me, you are in today’s age, after watching DonaldTrump, he is Christian, you will not change your religion, will notchange religion after seeing Prime Minister Narendra Modi’sreligion...

xx xx xx

Maulana Ali Qadri: Seeing the implementation of KhwajaMoinuddin Chishti...Seeing the Talimat of Islam that all livetogether, there is no inferiority Seeing Moinuddin’s life, peopleaccepted Islam...

Amish Devgan: Dr. Sudhanshu Trivedi...Akranta Chishticame...Akranta Chisti came Lootera Chishti came after thenreligion changed.

Maulana Qadri: No man accepted Islam at the edge of thesword...He became Muttasir from Islam and accepted Islamby liking the teachers of Islam...I would like to say that to you...

xx xx xx

Amish Devgan: Vinod ji, I got your point. Why Jamiat is creatingfear mongering among Muslim community...Jamiat is creating falseperception that their place of worship is closing...

xx xx xx

Ateeq-ur-Rehman: Amish let’s discuss the Act only in thebeginning of the show, you mentioned that Hindu- Muslim slugfestshould not happen...We are adhere to this...Vinod Bansal is nowsaying that 1991 Act’s provision should be discussed again...Is itnot insult to Parliament...The Act was passed in Parliament whenBJP was also present in the House...Why they have not discussedthis issue before Ram Mandir verdict...Why they were silent...

Vinod Bansal: This case was in consideration before Ram Mandirissue.

Ateeq-ur-Rehman: Amish ji...Mahant ji talking about Hindupride...What about Buddhist pride...

xx xx xx

Amish Devgan: I am stopping for break Sudhanshu ji Sudhanshuji I am staying for break but on public demand, Shadab Chauhanwill apologize after the break...I will go to Shadab Chauhan afterthe break. He will apologize to the whole saint society...I am comingback after the break and if he don’t apologise, he will have to getout of this debate.

xx xx xx

Amish Devgan: Yes or no...I am not giving chance to say yes orno...You will either apologize, your audio will open. If you do notapologize, I will say thank you...Thank you for coming...

Shadab Chauhan: The son of the farmer says that he...

Amish Devgan: The son of farmer is not matter of son of afarmer, it is matter of saints...

Shadab Chauhan: I leave the debate...They are goons, they aregoons. Those who fight in the name of religion are goons...

CAmish Devgan: I will not ask for forgiveness keep shouting I donot matter...I will not ask for forgiveness...

Shadab Chauhan: No ........................................ Farmer’s sonwon’t apologise.

Amish Devgan: So get out again...You get this person out ofDdebates...Turn off the audio of this...I never say that to anyguest...But you spoke derogatory words...Show this person showa full frame...You are foolish man...Open the audio, what is hesaying...

Shadab Chauhan: And but goons will be called goons...EAmish Devgan: Apologise to the saint community...

Shadab Chauhan: I respect all religions but goons will be calledgoons...

Amish Devgan: Same respect for all religions, everybody spokeFabout religion...Nobody called anything derogatory to Jamiat UlemaHind...No one spoke...The saints who are putting up social petitionwould be called goons...goons?..

Shadab Chauhan: There are hooligans who break religiousplaces...There are goons who break the Constitution are goonsGwho destroy the Constitution...

Amish Devgan: Shut up and get out. You are out...You are not fitto sit in this debate. You are out...Turn these out. Turn off theaudio. Keep eating the minds of your family...get out of here...Iam asking you Qadri sahib...the words used by Shadab Chauhan,Hwere they wrong or right?

Maulana Ali Qadri: See...the use of such derogatory words forany religion is not approved by me or by anybody...

Amish Devgan: Thanks.

Maulana Qadri: It is necessary to respect the Guru of anyreligion. I believe it to be yours and it is request from you alsothat do not use the word Islamic terrorism...because terror has noreligion...

xx xx xx

Amish Devgan: Thank you very much...Mahant ji, I am sorry, Iwill not be able to give more time than this...Thank you verymuch...for keeping your point in our discussion...Finally, I willalways I conclude...

But in conclusion today, I want to say something that we shouldrespect all religions...But many people wrote that Shadab Chauhanshould not be called in this debate, such people are abusive...Seewe can’t judge people on the basis of their face...He had donewrong...we put him out of debate...but it is very important toboycott such people...and that’s why we boycotted them in thisdebate...Namaskar...”

A. First Prayer – Whether the FIRs should be quashed?

(i) Cause of Action

13. We reject the contention of the petitioner that criminalproceedings arising from the impugned FIRs ought to be quashed asthese FIRs were registered in places where no ‘cause of action’ arose.Section 179 of the Criminal Code provides that an offence is triable atthe place where an act is done or its consequence ensues. It provides:

“179. Offence triable where act is done or consequence ensues:When an act is an offence by reason of anything which has beendone and of consequence which has ensued, the offence maybe inquired into or tried by Court within whose local jurisdictionsuch thing has been done or such consequence has ensued.”

The debate-show hosted by the petitioner was broadcast on awidely viewed television network. The audience, including thecomplainants, were located in different parts of India and were affectedby the utterances of the petitioner; thus, the consequence of the words

Aof the petitioner ensued in different places, including the places ofregistration of the impugned FIRs.

Further, clause (1) of Section 156 of the Criminal Code providesthat any officer in-charge of police station may investigate anycognizable case which court having jurisdiction over the local limits ofBsuch station would have the power to inquire into or try. Thus, conjointreading of Sections 179 and 156 (1) of the Criminal Code make it clearthat the impugned FIRs do not suffer from this jurisdictional defect.

(ii) Defence of causing slight harm

14. The petitioner has relied upon the decision of this Court inCVeeda Menez and the decision of the High Court of Delhi in NeelamMahajan to plead the defence of trifle under Section 95 of the PenalCode. We are not inclined at this stage to entertain this defence of thePetitioner. Section 95 is intended to prevent penalisation of negligiblewrongs or offences of trivial character. Whether an act, which amountsDto an offence, is trivial would undoubtedly depend upon the evidencecollated in relation to the injury or harm suffered, the knowledge orintention with which the offending act was done, and other relatedcircumstances. These aspects would be examined and considered atthe appropriate stage by the police during investigation, after investigationby the competent authority while granting or rejecting sanction or by theECourt, if charge-sheet is filed. The present case cannot be equated witheither Veeda Menez or Neelam Mahajan’s case where the factualmatrix was undisputed and admitted. It would be wrong and inappropriatein the present context to prejudge and pronounce on aspects which arefactual and disputed. The ‘content’ by itself without ascertaining factsFand evidence does not warrant acceptance of this plea raised by thepetitioner. The defence is left open, without expressing any opinion.

(iii) Hate Speech

15. Benjamin Franklin, in 1722, had stated:

“Without Freedom of Thought, there can be no such Thing asGWisdom; and no such Thing as public Liberty, without Freedom ofSpeech; which is the Right of every Man, as far as by it, he doesnot hurt or control the Right of another; And this is the only Checkit ought to suffer, and the only Bounds it ought to know.”

Two centuries later it remains difficult in law to draw the outmostbounds of freedom of speech and expression, the limit beyond which theright would fall foul and can be subordinated to other democratic valuesand public law considerations, so as to constitute criminal offence.The difficulty arises in ascertaining the legitimate countervailing publicduty, and in proportionality and reasonableness of the restriction whichcriminalises written or spoken words. Further, criminalisation of speechis often demarcated and delineated by the past and recent significantevents affecting the nation including explanation of their causes.Therefore, constitutional and statutory treatment of ‘hate speech’ dependson the values sought to be promoted, perceived harm involved and theimportance of these harms.[57] Consequently, universal definition of ‘hatespeech’ remains difficult, except for one commonality that ‘incitementto violence’ is punishable.16. This Court in 2014, in Pravasi Bhalai Sangathan hadrequested the Law Commission of India to examine the possibility ofdefining the expression ‘hate speech’, and make recommendations tothe Parliament to curb this menace, especially in relation to electoraloffences. This Court had expressed difficulty in ‘confining the prohibitionto some manageable standard’. The Law Commission, in its 267[th] Reporton Hate Speech had recommended amendments to the criminal lawsfor inserting new provisions prohibiting incitement to hatred and causingfear, alarm, or provocation of violence in certain cases, but these havenot yet been accepted by the government. Referring to the ConstituentAssembly Debates and the Constitution, the Report observes that theright to speech was not to be treated as absolute, but subject to restrictionson the grounds like sedition, obscenity, slander, libel and interest of publicorder. If the State is denied power to restrict speech on the basis ofcontent, it might produce debates informed by prejudices of the publicthat would marginalise vulnerable groups and deny them equal space inthe society. The mode of exercise of free speech, the context and theextent of abuse of freedom are important in determining the contours ofpermissible restrictions. The Commission also felt that laying down of adefinite standard might lead to curtailment of free speech; concernthat has prevented the judiciary from defining hate speech in India.However, this is not to deny that the courts while adjudicating each case

57 Hate Speech in Constitutional Jurisprudence: Comparative Analysis by MichelRosenfeld, 24 Cardozo L. Rev. 1523 2002-2003

Ahave to inevitably apply an objective test in terms of the legislativeprovisions. This is an inescapable legal necessity to ensure certainty andto prevent abuse and misuse, as failure to do so would curtail andsubjugate the right to free speech and expression to occasional whimsand even tyranny of subjective understanding of the authorities.Difference between free speech and hate speech in the context of theBpenal law must be understood.

17. The Law Commission report analysed the legal standards undervarious instruments of international law that lay down the regime forcontrolling and preventing hate speech, which we will encapsulate. Article20(2) of the International Covenant on Civil and Political Rights, 1966C(ICCPR) prohibits ‘advocacy of national, racial or religious hatred thatconstitutes incitement to discrimination, hostility or violence’. Similarly,Articles 4 and 6 of the International Convention on the Elimination of AllForms of Racial Discrimination, 1966 (CERD), prohibits ‘disseminationof ideas based on racial superiority or hatred, incitement to racialDdiscrimination as well as all acts of violence or incitement to such actsagainst any race or group of persons of another colour or ethnic origin…’.The Human Rights Council’s Report of the Special Rapporteur on thePromotion and Protection of the Right to Freedom of Opinion andExpression, in the context of internet content, states that freedom ofexpression can be restricted on grounds like hate speech (to protectErights of affected communities), defamation (to protect the rights andreputation of individuals against unwarranted attacks), and ‘advocacy’of national, racial or religious hatred that constitutes incitement todiscrimination, hostility or violence (to protect the rights of others). Article10 of the European Convention of Human Rights guarantees the right toFfreedom of expression, subject to certain ‘formalities, conditions,restrictions or penalties’ in the interest of … public safety, for theprevention of disorder or crime… for the protection of the reputation orrights of others…’. Further, Article 17 of the Convention prohibits abuseof the right by ‘any State, group or person’. The Council of Europe’sCommittee of Ministers to Member States on Hate Speech has definedG‘Hate Speech’ as ‘covering all forms of expression which spread, incite,promote or justify racial hatred, xenophobia, anti-Semitism or other formsof hatred based on intolerance, including: intolerance expressed byaggressive nationalism and ethnocentrism, discrimination and hostilityagainst minorities, migrants and people of immigrant origin.’ The LawH

Commission report notes that pluralism, tolerance, peace and non-discrimination have been termed non-derogatory values by the EuropeanCourt of Human Rights in ascertaining the extent of free speech allowedunder the Convention; speech propagating religious intolerance,negationism, homophobia etc. has been excluded from the ambit of Article10 of European Convention of Human Rights and the importance ofresponsible speech in multicultural society has been stressed by thecourt in several cases. The Law Commission report has noted that inrecent years, the European Court of Human Rights has moved from astrictly neutral approach, wherein not every offensive speech wasconsidered illegitimate, by holding that interference is not to be solelyjudged on legitimate aim test but also whether such interference wasnecessary in democratic society. This moderation takes into accountthat affording protection to all kinds of speech, even offensive ones,many times vilifies the cause of equality.

18. We will now succinctly refer to the American position whichdiscloses strong preference for liberty over equality, and commitmentto individualism, predicated on the belief that:

“...Truth was definite and demonstrable and that it had uniquepowers of survival when permitted to assert itself in “free andopen encounter.” [...] Let all with something to say be free toexpress themselves. The true and sound will survive; the falseand unsound will be vanquished. Government should be kept outof the battle and not weigh the odds in favor of one side or theother. And even though the false may gain temporary victory,that which is true, by drawing to its defence additional forces, willthrough the self-righting process ultimately survive.”[58]

19. The American framework on hate speech is based upon fourmajor philosophical justifications.[59] Justification from democracy is basedon the belief that free speech enables democratic self- government byallowing citizens to convey and receive ideas. This rationale does notgrant protection to speech that is anti- democratic in general, and hatefulor political extremist in particular. Another justification comes from the

58 Frederick Siebert writing on John Milton’s Areopagitica, 1644, in The LibertarianTheory of the Press, in FOUR THEORIES OF THE PRESS 39, 44-45

59 “Justification from democracy, the justification from social contract, the justificationfrom the pursuit of the trust, and the justification from individual autonomy.” – CardozoL.Rev.1523 2002-2003 (HeinOnline).

Asocial contract theory, which requires that ‘fundamental political institutionsmust be justifiable in terms of an actual or hypothetical agreement amongall members of the relevant society.’ The third justification – pursuit ofthe truth, is based on the utilitarian philosophy. Popularly known as thejustification based on ‘free marketplace of ideas,’ it is grounded in thenotion that truth is more likely to prevail through open discussion, andBthat the society will be better able to progress if the government is keptout of adjudicating as to what is true or false, valid versus invalid, oracceptable against abhorrent. The fourth justification comes from theidea of autonomy, and is primarily individualistic, unlike the previous threethat value collective good. According to this, free speech enablesCindividual autonomy, respect and well-being through self-expression.

20. The threshold or the standard in American jurisprudence todetermine the circumstances under which the First Amendment freedomsof speech, press and assembly should be restricted has with time movedfrom the ‘bad tendency test’ i.e., prohibiting speech if it has tendency toDharm public welfare, to the test of ‘clear and present danger’,[60] and tofinally the test of ‘imminent lawless action’. Mr. Justice Douglas in hisconcurring opinion in Brandenburg v. Ohio[61 ]had adumbrated that the‘clear and present danger’ precept in pronouncements during World WarI and to check Marxism had moved away from the First Amendmentideal as in Dennis v. United States[62]‘not improbable’ standard wasEfollowed. The ‘imminent lawless action’ test has three distinct elements,namely – intent, imminence and likelihood. In other words, the Statecannot restrict and limit the First Amendment protection by forbidding orproscribing advocacy by use of force or law, except when the speakerintends to incite violation of the law – that is both imminent and likely.F21. Michel Rosenfeld in his essay[63] states that primary functionof free speech has taken different forms in four historical stages. The

60 Mr. Justice Holmes in Schenek v. United States, 249 U.S. 47 (52), has described thetest as:

“The question in every case is whether the words used are used in suchGcircumstances and are of such nature as to create clear and present dangerthat they will bring about the substantive evils that Congress has right toprevent. It is question of proximity and degree.”61 395 U.S. 444 (1969)

62 341 U.S. 494

63 ‘Hate Speech in Constitutional Jurisprudence: Comparative Analysis’ by MichelHRosenfeld, 24 Cordozo L. Rev. 1523 2002-2003

first stage, dating back to the War of Independence, established protectionof people against the government as the dominant function of free speech.In the second stage, as democracy became entrenched in the USA, freespeech was meant to protect proponents of unpopular views against thetyranny of the majority. Stage three, panning between mid-1950s to 1980swhen there was widespread consensus on essential values, saw themain function of free speech shift from lifting restraints on speakers toensuring that listeners remain open-minded. Finally, with the rise ofalternative discourses such as feminist and critical race theories attackingmainstream and official speech as inherently oppressive, the primaryrole of free speech became the protection of oppressed and marginaliseddiscourses against the hegemony of discourses of the powerful.Accordingly, there are suggestions that ‘imminent lawless action’ failsto take into consideration and is prone to undermine the autonomy orself-respect of those whom the hate speech targets. Critics emphasiseon the threat posed by unconstrained speech by the hegemony ofdominant discourses at the expense of discourses of others, which as aresult may only exacerbate the other’s humiliation and denial of self-respect and autonomy. Counter approach reflects on the impact of hatespeech on target and non-target audiences. The targeted audiences couldexperience anger, fear, concern and alienation. The non-targetedaudiences may have different experiences from reversion to mixedemotions to downright sympathy for the substance of the main hatemessage, if not the form. This has long-term effects even on the non-targeted audiences, as even when they do not agree, they tend to acceptas normal the message of hate over period of time.

22. The Canadian jurisprudence on the subject proceeds on thebasis of inviolability of human dignity as its paramount value andspecifically limits the freedom of expression when necessary to protectthe young and the right to personal honour. Canadian approach emphasiseson multiculturalism and group equality, as it places greater emphasis oncultural diversity and promotes the idea of ethnic mosaic. The CanadianSupreme Court in James Keegstra had upheld the criminal convictionof high school teacher for anti-Semitic propaganda on the ground thatit amounts to wilful promotion of hatred against group identifiable onthe basis of colour, race, religion or ethnic origin. It was observed asunder:

A“(1) seeking and attaining truth is an inherently good activity; (2)participation in social and political decision-making is to be fosteredand encouraged; and (3) diversity in forms of individual self-fulfillment and human flourishing ought to be cultivated in tolerantand welcoming environment for the sake of both those who conveya meaning and those to whom meaning is conveyed.”B

The Canadian position, therefore, considers the likely impact ofhate speech on both the targeted groups and non-targeted groups. Theformer are likely to be degraded and humiliated to experience injuries totheir sense of self-worth and acceptance in the larger society and maywell, as consequence, avoid contact with members of the other groupCwithin the polity. The non-targeted members of the group, sometimesrepresenting society at large, on the other hand, may gradually becomede-sensitised and may in the long run start accepting and believing themessages of hate directed towards racial and religious groups. Theseinsidious effects pose serious threats to social cohesion rather than merely

Dprojecting immediate threats to violence. Dixon, C.J., in Canada (HumanRights Commission) v. Taylor,[64] had observed:

“...messages of hate propaganda undermine the dignity and self-worth of targeted group members and, more generally, contributeto disharmonious relations among various racial, cultural andEreligious groups, as result eroding the tolerance and openmindedness that must flourish in multicultural society which iscommitted to the idea of equality.”

23. Saskatchewan (Human Rights Commission) had laid downthree tests to determine whether an expression could qualify as hateFspeech or not. First, courts must apply the hate speech prohibitionsobjectively by applying the test of reasonable person. Secondly, thelegislative term ‘hatred’ or ‘hatred or contempt’ must be interpreted tomean the extreme form of the emotions, i.e. detestation and vilification.Thirdly, the effect of the expression on the targeted group should bedetermined by the Court. Canadian laws attempt to restrict false andGdiscriminatory statements that are likely to lead to breach of peace. InR. v. Zundel the Court observed that publishing and spreading falsenews that was known to be false is likely to cause injury to public interestand multiculturalism.

24. In Australia, the position of law is substantially aligned withthat in Canada. The Australian Federal Court, in the case of Pat Eatockv. Andrew Bolt[65]followed the dictum in Keegstra in holding that theright to freedom of expression could be restricted vide legislation whichmade racial hatred criminal offence. The Federal Court quoted withapproval the observations in Keegstra that had examined and rejectedthe underlying rationale theory, to hold:

(a)The justification from pursuit of truth does not support theprotection of hate propaganda, and may even detriment oursearch for truth. The more erroneous or mendacious astatement, the less its value in the quest of truth. We mustCnot overemphasise that rationality will overcome allfalsehoods.

(b)Self-fulfilment and autonomy, in large part, come fromone’s ability to articulate and nurture an identity based onmembership in cultural or religious group. The extent towhich this value furthers free speech should be modulatedinsofar as it advocates an intolerant and prejudicial disregardfor the process of individual self-development and humanflourishing.

(c)The justification from participation in democracy shows ashortcoming when expression is employed to propagateideas repugnant to democratic values, thus undermining thecommitment to democracy. Hate propaganda argues for asociety with subversion of democracy and denial of respectand dignity to individuals based on group identities.

25. The South African position regards dignity as paramountconstitutional value and the law and the courts are willing to subjugatefreedom of expression when the latter sufficiently undermines the former.The constitutional provision, therefore, enjoins the legislature and thecourt to limit speech rights and the exercise of those rights which depriveothers of dignity.

26. The position in the United Kingdom has shifted over the yearsfrom reinforcing the security of the government to checking incitementto racial hatred among non-target audience with the aim of protecting

Atargets against racially motivated harassment. The Race Relations Act,1965 makes it crime to utter in public or publish words ‘which arethreatening, abusive or insulting’ and which are intended to incite hatredon the basis of race, colour or national origin. The Act focuses on‘incitement to hatred’ rather than ‘incitement to violence’ but requiresproof of intent for conviction. It also distinguishes between free speechBand protects expression of political position but checks and criminalisesillegal promotion of hate speech on basis of race, colour or nationalorigin.[66]

27. Germany, on the other hand, and by contrast, believes thatfreedom of expression is one amongst several rights which is limited byCprinciples of equality, dignity and multiculturalism. Further, value ofpersonal honour always triumphs over the right to utter untrue statementsor facts made with the knowledge of their falsity. If true statements offact invade the intimate personal sphere of an individual, the right topersonal honour triumphs over the freedom of speech. If such truthDimplicates the social sphere, the court once again resorts to balancing.Finally, if the expression of opinion as opposed to fact constitutes aserious affront to the dignity of person, the value of person howevertriumphs over the speech. But if damage to reputation is slight, thenagain, the outcome of the case will depend on careful judicial balancing.Therefore, German application strikes balance between rights andEduties, between the individual and the community and between the self-expression needs of the speaker and the self- respect and dignity of thelisteners. It recognises the content- based speech regulation. It alsorecognises the difference between fact and opinion.[67]

28. The United States and France saw birth of democracy videF18th century revolutions that strove to guarantee rights to individuals.However, the situations were quite different. In France, the revolutionsought to limit, if not abolish – the prerogatives of rich and powerfulcatholic church. The French Parliament defined ‘religious freedom’ inindividual terms and in August, 1789 adopted the declaration des Droits

Gde l’Homme et du Citoy en, which declared – ‘no one may be disturbedfor his opinions, even religious ones, provided that their manifestation

66 ‘Hate Speech in Constitutional Jurisprudence: Comparative Analysis’ by MichelRosenfeld, 24 Cordozo L. Rev. 1523 2002-2003

67 See Hate Speech in Constitutional Jurisprudence: Comparative Analysis by MichelHRosenfeld, 24 Cardozo L. Rev. 1523 2002-2003.

does not trouble the public order established by the law’. In 1905,Declaration of Laïcité, freedom of conscience, the freedom to believeor not believe, was enshrined in the Constitution. The principle recognisesfreedom to practice religion, in private or in public, as long as themanifestation of the practice does not disturb the peace. The Stateguarantees equality to all citizens regardless of their philosophical orreligious conviction as all persons are born and remain free and equal inright. Everyone is free to express their own particular convictions andadhere to it. Laïcité confederates and reinforces the unity of the nationby bringing citizens together by adhering to values of the republic whichincludes the right to accept differences.[68] In accordance with the aboveprinciple, the French recognise and accept the right to offend as anessential corollary to freedom of expression which should be defendedor upheld by other means, than by causing an offence. France doeshave hate speech laws against racism and xenophobia, which includesanti-religious hate crimes, to protect groups and individuals from beingdefamed or insulted on the ground of nationality, race, religion, ethnicity,sex, sexual orientation, gender identity or because they have handicap.However, the French law gives primacy to freedom of expression, whichit believes is meaningless without the right to offend, which would tosome not only include the right to criticise and provoke but also the rightto ridicule when it comes to ideas and beliefs, including religious beliefs.

29. Andrew F. Sellars, in his essay ‘Defining Hate Speech’[69] hasexamined the concept of hate speech in different democratic jurisdictions,and refers to attempts to define ‘hate speech’ by scholars and academics,including Mari J. Matsuda, Mayo Moran, Kenneth D. Ward, SusanBenesch, Bhikhu Parekh and others. The Author has formulated commontraits in defining ‘hate speech’ observing that this would be helpful andrelevant in considering how the society should respond. These can becategorised as follows:

(a)Hate speech targets group, or an individual as memberof the group. The word ‘group’ has been traditionally usedwith reference to historically oppressed, traditionallydisadvantaged or minority, but some prefer not to look for adefined group but to see whether the speaker targets

68 Declaration for Laïcité – Observatoire de la laicite (Republique Francaise)

69 Andrew F. Sellers, Defining Hate Speech, published by Berkman Klein Center forInternet & Society at Harvard University

someone based on an arbitrary or normatively irrelevantfeature. The expression ‘group’ would include identificationbased upon race, ethnicity, religion, gender, sexualorientation, sexual identity, appearance, physical ability, etc.;

(b)Content of the message should express hatred. HostilityBtowards group in the spoken words reflects the intent ofthe speaker. One should be able to objectively identify thespeech as an insult or threat to the members of the targetedgroup, including stigmatising the targeted group by ascribingto it qualities widely disregarded as undesirable;

C(c)Speech should cause harm, which can be physical harmsuch as violence or incitement and true threats of violenceand can include deep structural considerations caused bysilent harm because of the victim’s desperation that theycannot change the attribute that gives rise to hatred. Thespeech could permeate and impact the victim’s relationshipDwith others, cause denial of oneself and result in structuralharms within the society;

(d)Intent of the speaker to cause harm or other bad activity tomost is an essential feature of hate speech. In some statutesit can be even tacit inherent component. However, whatEthe speaker should intend to constitute hate speech is subjectto varied positions. Intent may refer to non-physical aspectslike to demean, vilify, humiliate, or being persecutorial,disregarding or hateful, or refer to physical aspects likepromoting violence, or direct attacks. However, speakersFcan lie about their intent not only to others but to themselves.Intent may be disguised and obscured;

(e)Speech should incite some other consequence as resultof the speech. Incitement could be of non-physical reactionssuch as hatred, or physical reactions such as violence.GCertain jurisdictions require that the incitement should beimminent or almost inevitable and not too remote;

(f)Context and occasion of the speech is important. Thisrequirement means looking into the factors such as thepower of the speaker, place and occasion when the speechwas made, the receptiveness of the audience and the historyH

of violence in the area where the speech takes place. Itrequires examination whether the statement was made inthe public to the view of the targeted group as an undesirablepresence and legitimate object of hostility. In certaincontexts, at ‘home speeches’ may themselves amount tohate speeches as the said speeches are now uploaded andcirculated in the virtual world through internet etc.; and lastly

(g)Speech should have no redeeming purpose, which meansthat ‘the speech primarily carries no meaning other thanhatred towards particular group’. This is necessarilysubjective and requires examination of good faith and goodmotives on the part of the speaker. ‘No legitimate purpose’principle being abstract has difficulties, albeit is welldocumented. ‘Good faith’ and ‘no legitimate purpose’exclusions are accepted as good exception.

C. Decisions of this Court and High Courts interpretingArticle 19(1)(a) and 19(2) of the Constitution, and Sections 153A,295A and clause (2) of Section 505 of the Penal Code

30. In Ramji Lal Modi, Constitution Bench of five Judges,relying upon the earlier decisions in Romesh Thappar and BrijBhushan, had upheld the constitutional validity of Section 295A, aprovision which criminalises the act of insulting religious beliefs with thedeliberate intention to outrage religious feelings of class of citizens.Ruling that the right to free speech is not absolute as Article 19(2) of theConstitution envisages reasonable restrictions, this court observed thatthe phrase ‘public order’, as ground for restricting the freedom ofspeech, incorporated in Article 19(2) vide the Constitution (FirstAmendment) Act, 1951 with retrospective effect, reads ‘in the interestof public order’, which connotes much wider import than‘maintenance of public order’. This distinction between ‘maintenanceof public order’ and ‘in the interest of public order’ was reiterated byanother Constitution Bench of five Judges of this Court in Virendra/K.Narendra.

31. Even so, in Ramji Lal Modi Section 295A of the Penal Codewas interpreted punctiliously observing:

“9...Section 295-A does not penalise any and every act of insultto or attempt to insult the religion or the religious beliefs of class

244SUPREME COURT REPORTS

Aof citizens but it penalises only those acts of insults to or thosevarieties of attempts to insult the religion or the religious beliefs ofa class of citizens, which are perpetrated with the deliberate andmalicious intention of outraging the religious feelings of that class...”

Import of Section 295A of the Penal Code, Ramji Lal Modi holds,Bis to curb speech made with ‘malicious intent’ and not ‘offensivespeech’. Criminality would not include insults to religion offeredunwittingly, carelessly or without deliberate or malicious intent to outragethe religious feelings. Only aggravated form of insult to religion when itis perpetuated with deliberate and malicious intent to outrage the religiousfeelings of that group is punishable. Notably, this court had alreadyCdismissed the Special Leave Petition and upheld Ramji Lal Modi’sconviction under Section 295A for having published an article in amagazine against Muslims. It was specifically noticed that even earlier,the journalist in question had printed and published an article or cartoonabout donkey on which there was agitation by Muslims in Uttar Pradesh,Dwhich after prosecution, however, had eventually resulted in petitioner’sacquittal by the Allahabad High Court.

32. In Kedar Nath Singh, Constitution Bench of five Judges ofthis Court had interpreted Sections 124A and 505 of the Penal Codepost amendment to clause (2) to Article 19 of the Constitution wideningEits ambit by incorporating the words- ‘in the interest of’ … ‘publicorder’. Reference was made to the difference in approach andinterpretation by Sir Maurice Gwyer, C.J., speaking for the Federal Courtin Niharendu Dutt Majumdar and the decision of the Privy Council inSadashiv Narayan Bhalerao, which had approved the elucidation byStrachey, J. in Bal Gangadhar Tilak. This court held that the expositionFof law by the Federal Court in Niharendu’s case would be apposite andin conformity with the amended clause (2) of Article 19. Specificreference was made to the dissenting opinions of Fazl Ali, J., in RomeshThappar and Brij Bhushan, to observe that the difference betweenthe majority opinion in the two cases and the minority opinion of Fazl Ali,GJ. had prompted the Parliament to amend clause (2) of Article 19 by theConstitution (First Amendment) Act, 1951 with retrospective effect. FazlAli, J. had held that the concept of ‘security of state’ was very muchallied to the concept of ‘public order’ and that restrictions on the freedomof speech and expression could validly be imposed in the interest ofpublic order. At the same time, this court had cautioned that the twoH

penal provisions, read as whole together with the explanation, aim atrendering penal only those activities which would be intended, or havethe tendency, to create disorder or disturbance of public peace by resortto violence. It was elutriated that criticism and comments on government’saction in howsoever strong words would not attract penal action as theywould fall within the fundamental right of freedom of speech andexpression. The penal provisions catch up when the word, written orspoken etc., have the pernicious tendency or intention of creating publicdisorder. So construed, the two provisions strike the correct balancebetween individual fundamental rights and the interest of public order.For interpretation, the court should not only have regard to the literalmeaning of the words of the statute but take into consideration theantecedent history of the legislation, its purpose and the mischief it seeksto suppress.33. With reference to Section 505 of the Penal Code, Kedar NathSingh observes that each of the three clauses of the Section refer to thegravamen of the offence as making, publishing or circulating anystatement, rumour or report – (a) with the intent of causing or which islikely to cause any member of the Army, Navy or Air Force to mutiny orotherwise disregard or fail in his duty as such; or (b) cause fear or alarmto the public or section of the public which may induce the commissionof an offence against the State or against public tranquillity; or (c) inciteor which is likely to incite one class or community of persons to commitan offence against any other class or community. Constituent elementsof each of the three clauses have reference to the direct effect on thesecurity of the State or public order. Hence, these provisions would notexceed the bounds of reasonable restriction on the right to freedom ofspeech and expression.

34. We have referred to the judgment in Kedar Nath Singh, forit interprets clause (2) of Section 505 of the Penal Code and also laysdown principles and guidelines to interpret penal provision in the contextof the fundamental right to freedom of speech and expression. Secondly,and more importantly, this decision affirms the view of the Federal Courtin Niharendu’s case that the expression ‘government established bylaw’ has to be distinguished from the ‘persons for the time being engagedin carrying on the administration’. The former is the visible symbol ofthe State, which gets enwrapped when the very existence of the Statewill be in jeopardy if the government established by law is subverted.

AWritten or spoken words etc. that bring the State into contempt or hatredor create disaffection fall within the ambit of the penal statute when thefeeling of disloyalty to the government established by law or enmity to itimports the idea of tendency to public disorder by use of actual violenceor incitement to violence. Equally, strongly worded expression ofdisapprobation of the actions of the government, even elected government,Bwithout exciting those feelings which generate the inclination to causepublic disorder by acts of violence would never be penal. Further,disloyalty to the government by law and comments even in strong termson the measures or acts of the government so as to ameliorate thecondition of the people or to secure cancellation or alteration of thoseCactions or measures by lawful means, without exciting of those feelingsof enmity and disloyalty which imply excitement to public disorder oruse of force, is not an offence. Another significant advertence is to theprinciple that recognises that if two views are possible, the court shouldconstrue the provisions of law penalising ‘hate speech’ in the way thatwould make them consistent with the Constitution, and an interpretationDthat would render them unconstitutional should be avoided. Interpretingthe sections under challenge, the provisions were read as whole tomake it clear that the aim is to render penal only such activities as wouldbe intended, or have tendency, to create public disorder or disturbanceof public peace by resort to violence. As sequitur it follows that theEcourts should moderate and control the ambit and scope of the penalprovisions to remain within and meet the constitutional mandate.Interpretation and application that is distant and beyond the superiorcommand of the permissible constitutional limitation vide clause (2) toArticle 19 is unacceptable.

F35. The decision in Ramji Lal Modi and the later decision inBilal Ahmed Kaloo, which had examined Sections 153A and 505(2) ofthe Penal Code, had primarily applied the ‘Bad Tendency test’ aspropounded by the American jurists. In Dr. Ram Manohar Lohia, theConstitution Bench of five Judges, referring to the words ‘in the interest

of… public order’ in clause (2) to Article 19 had observed that order isGa basic need in any organised society. It implies orderly state of societyor community in which the citizens can peacefully pursue their normalactivities of life. This is essential as without order there cannot be anyguarantee of other rights. Security of the State, public order and law andorder represent three concentric circles: law and order being the widest,Hwithin which is the next circle representing public order and the smallest

circle represents the security of the State. The phrase ‘security of theState’ is nothing less than endangering the foundations of the State orthreatening its overthrow. It includes events that have national significanceor upheavals, such as revolution, civil strife, war, affecting security ofthe State but excludes breaches of purely local significance. The phrase‘minor breaches’ refers to public inconvenience, annoyance or unrest.The phrase ‘in the interest of...public order’, in the context of clause (2)to Article 19, would mean breaches of purely local significance, embracinga variety of conduct destroying or menacing public order. Public order,in view of the history of the amendment is synonymous with public peace,safety and tranquillity. Further, any restriction to meet the mandate ofclause (2) to Article 19 has to be reasonable, which means that therestriction must have proximate and real connection with public orderbut not one that is far-fetched, hypothetical, problematic or too remotein the chain of its relationship with public order. Restriction must not goin excess of the objective to achieve public order. In practice therestriction to be reasonable, should not equate the actus with any remoteor fanciful connection between particular act of violence or incitementto violence. This Court upheld the decision of the Allahabad High Courtstriking down Section 3 of the U.P. Special Powers Act, 1932 as thesection within its wide sweep had included any instigation by words,signs or visible representation not to pay or defer payment of anyextraction or even contractual dues of the government authority, landowner, etc. which was treated as an offence. Even innocuous speecheswere prohibited by threat of punishment. It was observed there was noproximate or even foreseeable connection between such instigation andthe public order sought to be protected. Similarly, the argument of theState that instigation of single individual in the circumstances mentionedabove may in long run ignite revolutionary movement and destroy publicorder was rejected on the ground that fundamental rights cannot becontrolled on such hypothetical and imaginary considerations. Theargument that in democratic society there is no scope for agitationalapproach and the law, if bad, can be modified by democratic processalone was rejected on the ground that if the same is accepted it woulddestroy the right to freedom of speech. However, what is important isthe finding that public order is synonymous with public safety andtranquillity, in the sense that the latter terms refer to the former. Theterms refer to absence of disorder, involving breaches of local significancein contradiction to national upheavals affecting security of the State. Yet

Athey have be serious enough like civil strife and not mere law and orderissues. Further, the ‘proximate nexus test’ in the ‘interest of public order’should be satisfied.

36. In Madhu Limaye v. Sub-Divisional Magistrate, Monghyrand Others,[70] seven Judge Constitution Bench of this Court has rejectedBchallenge to the constitutional validity of Section 144 and Chapter VIIIof the Code of Criminal Procedure, 1873 holding that the impugnedprovisions properly understood were not in excess of the limits laid downin the Constitution for restricting the freedoms guaranteed under Article19(1) clauses (a), (b), (c) and (d). The Constitution Bench was requiredto interpret clauses (2), (3), (4) and (5) to Article 19 and whether theCprovision under challenge when interpreted would be protected in thesense that they would fall within the ‘interest of ..public order’ occurringin clauses (2), (3) and (4) and ‘interest of.. general public’ occurring inclause (5). Noticing that the phrase ‘in the interest of …public order’,enacted with retrospective effect vide the First Amendment in 1951, hasDbeen interpreted as expanding the scope of restrictions, which was earlierrestricted to aggravated activities calculated to endanger the security ofthe State only, reference was made to the decision in Dr. Ram ManoharLohia which had also quoted judgments of the Supreme Court of theUnited States in which it had been held that public order is synonymouswith public peace, safety and tranquillity. Hidayatullah, C.J., however,Eobserved that the terms ‘public order’ and ‘public tranquillity’ do overlapto some extent but are not always synonymous as ‘public tranquillity’ isa much wider expression and it’s breach may even include things thatcannot be described as public disorder. ‘Public order’ no doubt requiresabsence of disturbance of state of serenity in society but goes furtherFand means ordre publique, French term which means absence ofinsurrection, riot, turbulence or cry of violence. The expression ‘publicdisorder’ includes all acts which endanger the security of the State asalso acts which are comprehended by the expression ordre publiquebut not acts which disturb only the serenity of others. For breach of

public order, it is not necessary that the act should endanger the securityGof the State, which is far stricter test, but would not include every kindof disturbance of society. Accepting that ‘law and order’ represents thelargest circle within which is the next circle representing ‘public order’and inside that the smallest circle representing the ‘security of the State’

70 (1970) 3 SCC 746H

is situated, it was observed that State is at the centre and the societysurrounds it. Disturbances of society can fall under broad spectrumranging from disturbance of serenity of life to jeopardy of the State.Therefore, the journey travels first through public tranquillity then throughpublic order and lastly to the security of the State. Interpreting therequisites of Section 144, it was held that it was meant and concernedwith power with the State to free the society from the menace of seriousdisturbances of grave character, that is to say that the annoyance mustassume sufficiently grave proportions to bring the matter within theinterest of public order. Rejecting the contention that the language ofSection 144 was overbroad, reference was made to Section 188 of thePenal Code to hold that mere disobedience of the order is not sufficientto constitute an offence; there must be in addition obstruction, annoyance,or danger to human life, health or safety or riot or an affray for anoffence to me made out under the penal provision. Thus, the offenceunder Section 188 of the Penal Code is restricted and confined by thelegislative mandate. The general order under Section 144 is justified onthe ground that it may be necessary when number of persons is so largethat distinction between them and general public cannot be made withoutthe risk mentioned in the section. general order is thus justified, and ifthe action is too general, the order may be questioned by appropriateremedy provided in the Criminal Code.

37. Recently, this Court in Shreya Singhal, accepting theconstitutional challenge and striking down Section 66A of the InformationTechnology Act, 2000, had differentiated between categories and adoptedthe scales test when offensive speech would be criminalised, observing:

“13...There are three concepts which are fundamental inunderstanding the reach of this most basic of human rights. Thefirst is discussion, the second is advocacy, and the third is incitement.Mere discussion or even advocacy of particular cause howsoeverunpopular is at the heart of Article 19(1)(a). It is only when suchdiscussion or advocacy reaches the level of incitement that Article19(2) kicks in. It is at this stage that law may be made curtailingthe speech or expression that leads inexorably to or tends to causepublic disorder or tends to cause or tends to affect the sovereigntyand integrity of India, the security of the State, friendly relationswith foreign States, etc...”

This judgment relies upon the American principles of ‘clear andpresent danger’ and ‘imminent lawless action’ wherein to criminalisespeech, proximate nexus should be established, that is, causal linkagebetween the words spoken with the ‘clear and present danger’ and‘imminent lawless action’.

B38. In Shreya Singhal, this Court has struck down Section 66Aof the Information Technology Act on various grounds, includingunreasonableness of the restriction, absence of requirements of clause(2) to Article 19, including public order; having chilling effect and over-breadth; vagueness etc. Referring to the public order aspect of clause(2) of Article 19 and the reasonable restriction mandate, it was observedCthat they connote limitation on person in enjoyment of the right, andshould not be arbitrary and excessive in nature, beyond what is requiredby the specific clause applicable in the said case. Reference was madeto several judgments, including Chintaman Rao v. State of MadhyaPradesh,[71] State of Madras v. V.G. Row,[72] N.B. Khare (Dr.) v. StateDof Delhi[73]and Mohammed Faruk v. State of Madhya Pradesh andOthers,[74]to hold that the reasonable restriction test must be satisfiedboth in substantive and in procedural aspects. This test of reasonablenessshould be applied to each individual impugned statute, as no abstractstandard or general pattern of reasonableness is applicable to all cases.Reasonableness always has reference to evil sought to be remedied andErequires examination of the proportion of the imposition.

39. In Shreya Singhal, to exposit the public order stipulation inclause (2) of Article 19, reference was made to Arun Ghosh v. State ofWest Bengal[75]wherein the test as laid down in Dr. Ram ManoharLohia was applied to hold that public order would embrace more of theFcommunity than law and order. Public order refers to the even tempo ofthe life of the community taking the country as whole or even specifiedlocality. Disturbance of public order is to be distinguished from the actsdirected against individuals which do not disturb the society to the extentof causing general disturbance of public tranquillity. This was explainedGby way of examples:

71 AIR 1951 SC 11872 AIR 1952 SC 19673 AIR 1950 SC 21174 (1969) 1 SCC 853H75 (1970) 1 SCC 98

“3...Take for instance, man stabs another. People may be shockedand even disturbed, but the life of the community keeps moving atan even tempo, however much one may dislike the act. Takeanother case of town where there is communal tension. manstabs member of the other community. This is an act of verydifferent sort. Its implications are deeper and it affects the eventempo of life and public order is jeopardized because therepercussions of the act embrace large sections of the communityand incite them to make further breaches of the law and orderand to subvert the public order. An act by itself is not determinantof its own gravity. In its quality it may not differ from another butin its potentiality it may be very different...

...It means therefore that the question whether man has onlycommitted breach of law and order or has acted in mannerlikely to cause disturbance of the public order is question ofdegree and the extent of the reach of the act upon the society.The French distinguish law and order and public order bydesignating the latter as order publique...”

In Arun Ghosh, it was held that line of demarcation has to bedrawn between serious and aggravated forms of breaches of publicorder which affect life of the community or forms of breaches of publicorder which endanger the public interest at large, from minor breachesof peace which do not affect the public at large. Acts directed againstindividuals which do not disturb the society to the extent of causing ageneral disturbance of public tranquillity do not subvert public order, butare law and order issues. Referring to Dr. Ram Manohar Lohia’s case,it was observed that similar acts in different context may affect law andorder in one case and public order in the other. It is always the degree ofharm and its effect on the community. The test which is to be examinedin each case is whether the act would lead to disturbance of the currentlife of the community so as to amount to disturbance of public order, ordoes it affect merely an individual leaving the tranquillity of the societyundisturbed. The latter is not covered under and restriction must meetthe test of ordre publique affecting the community in the locality.

40. In Anuradha Bhasin v. Union of India and Others,76 thisCourt, while dealing with the suspension of internet services inthe area of Jammu and Kashmir in the background of public order

and security concerns, interpreted the term “reasonable” underclause (2) of Article 19 of the Constitution. It was expounded asunder:

“37. The right provided under Article 19(1) has certain exceptions,which empower the State to impose reasonable restrictions inappropriate cases. The ingredients of Article 19(2) of theConstitution are that:

(a) The action must be sanctioned by law;

(b) The proposed action must be reasonable restriction;

(c) Such restriction must be in furtherance of interests of thesovereignty and integrity of India, the security of the State, friendlyrelations with foreign States, public order, decency or morality orin relation to contempt of court, defamation or incitement to anoffence.

38. At the outset, the imposition of restriction is qualified by theterm “reasonable” and is limited to situations such as interests ofthe sovereignty, integrity, security, friendly relations with the foreignStates, public order, decency or morality or contempt of court,defamation or incitement to an offence. Reasonability of arestriction is used in qualitative, quantitative and relative sense.

39. It has been argued by the counsel for the petitioners that therestrictions under Article 19 of the Constitution cannot meancomplete prohibition. In this context, we may note that the aforesaidcontention cannot be sustained in light of number of judgmentsof this Court wherein the restriction has also been held to includeFcomplete prohibition in appropriate cases. [Madhya BharatCotton Assn. Ltd. v. Union of India, Narendra Kumar v. Unionof India, State of Maharashtra v. Himmatbhai NarbheramRao, Sushila Saw Mill v. State of Orissa, Pratap Pharma

(P) Ltd. v. Union of India and Dharam Dutt v. Union of India.]

40. The study of the aforesaid case law points to three propositionswhich emerge with respect to Article 19(2) of the Constitution.(i) Restriction on free speech and expression may include casesof prohibition. (ii) There should not be excessive burden on freespeech even if complete prohibition is imposed, and theGovernment has to justify imposition of such prohibition and explain

as to why lesser alternatives would be inadequate. (iii) Whethera restriction amounts to complete prohibition is question offact, which is required to be determined by the Court with regardto the facts and circumstances of each case. [Refer to State ofGujarat v. Mirzapur Moti Kureshi Kassab Jamat]

41. The second prong of the test, wherein this Court is requiredto find whether the imposed restriction/ prohibition was leastintrusive, brings us to the question of balancing and proportionality.These concepts are not new formulation under the Constitution.In various parts of the Constitution, this Court has taken balancingapproach to harmonise two competing rights. In Minerva MillsLtd. v. Union of India and Sanjeev Coke Mfg. Co. v. BharatCoking Coal Ltd.], this Court has already applied the balancingapproach with respect to fundamental rights and the directiveprinciples of State policy.”

41. Anuradha Bhasin’s case refers to the principle ofproportionality as formulated by this Court in Modern Dental Collegeand Research Centre and Others v. State of Madhya Pradesh andOthers[77]in the following words:

“...a limitation of constitutional right will be constitutionalitypermissible if: (i) it is designated for proper purpose; (ii) themeasures undertaken to effectuate such limitation are rationallyconnected to the fulfilment of that purpose; (iii) the measuresundertaken are necessary in that there are no alternative measuresthat may similarly achieve that same purpose with lesser degreeof limitation; and finally (iv) there needs to be proper relation(‘proportionality stricto sensu’ or ‘balancing’) between theimportance of achieving the proper purpose and the socialimportance of preventing the limitation on the constitutional right.”

Subsequently, the principle was reiterated in the Aadhaar judgmentreported as Justice K. S. Puttasamy v. Union of India (2).[78] We neednot elaborate on this principle in view of the limited controversy involvedin the present case, albeit the formulation recognises the benefit andneed for least intrusive measure when it comes to curtailment offundamental rights and for this purpose the court can examine the

77 (2016) 7 SCC 353

78 (2017) 10 SCC 1

Areasonableness of the measures undertaken and whether they arenecessary, in that there are no alternatives measures that can achievethe same purpose with lesser degree of restriction. Secondly, therehas to be proper proportionality or balance between the importance ofachieving the proper measure and social importance of preventing thelimitation on the constitutional right.B

42. The expression ‘reasonable restriction’ has been elucidated innumerous decisions which have been quoted in Subramanian Swamyv. Union of India and Others[79]to connote that the restriction cannotbe arbitrary or excessive and should possess direct and proximatenexus with the object sought to be achieved. Sufficient for our purposeCwould be reproduction of the observations of P.N. Bhagwati, J. (as HisLordship then was) in Maneka Gandhi v. Union of India[80]wherein hehad referred to the authority in Rustom Cowasjee Cooper v. Union ofIndia[81]and Bennett Coleman & Co. v. Union of India,[82] to observe:“20. It may be recalled that the test formulated in R.C. CooperDcase merely refers to “direct operation” or ‘direct consequenceand effect’ of the State action on the fundamental right of thepetitioner and does not use the word “inevitable” in this connection.But there can be no doubt, on reading of the relevant observationsof Shah, J., that such was the test really intended to be laid downEby the Court in that case. If the test were merely of direct orindirect effect, it would be an open-ended concept and in theabsence of operational criteria for judging “directness”, it wouldgive the Court an unquantitiable discretion to decide whether in agiven case consequence or effect is direct or not. Some otherconcept-vehicle would be needed to quantify the extent ofFdirectness or indirectness in order to apply the test. And that issupplied by the criterion of “inevitable” consequence or effectadumbrated in the Express Newspapers case. This criterion helpsto quantify the extent of directness necessary to constituteinfringement of fundamental right. Now, if the effect of StateGaction on fundamental right is direct and inevitable, then fortioriit must be presumed to have been intended by the authority taking

79 (2016) 7 SCC 22180 (1978) 1 SCC 24881 (1970) 2 SCC 298H82 (1972) 2 SCC 788

the action and hence this doctrine of direct and inevitable effecthas been described by some jurists as the doctrine of intendedand real effect.”

43. The decisions in Rustom Cowasjee Cooper and ManekaGandhi are also relevant for our purpose as they have considered theinterrelation between the rights enshrined in Article 21, Article 14 andArticle 19 and had made departure from the majority view in A.K.Gopalan v. State of Madras[83]to hold that these freedoms contained inPart III shade and merge into each other and are not watertightcompartments. They weave pattern of guarantees on the basic structureof human rights and impose negative obligations on the State not toencroach on individual liberty in its different dimensions. The rights underPart-III are wide ranging and comprehensive, though they have beencategorised under different heads, namely, right to equality, right tofreedom of expression and speech, right against exploitation, right tofreedom of religion, cultural and educational rights, and right toconstitutional remedies. Each freedom has different dimension andmerely because the limits of interference with one freedom are satisfied,the law is not free from the necessity to meet the challenge of anotherguaranteed freedom. Secondly, in Maneka Gandhi, it was held that theexpression ‘personal liberty’ in Article 21 is of the widest amplitude andit covers variety of rights which go on to constitute the personal libertyof man, though some of them have been raised to the status of distinctfundamental rights and given additional protection under Article 19. Article21 does not exclude Article 19 or vice-versa, or for that matter the rightto equality under Article 14 of the Constitution. Thus, Part III of theConstitution is expansive and its connotative sense carries collectionor bouquet of highly cherished rights. In Subramanian Swamy, thisCourt referred to Charu Khurana and Others v. Union of India andOthers[84]wherein it has been ruled that dignity is the quintessential qualityof personality and basic constituent along with honour and reputationof the rights guaranteed and protected under Article 21. Dignity is partof the individual rights that form the fundamental fulcrum of collectiveharmony and interest of society. While right to speech and expressionis absolutely sacrosanct in the sense that it is essential for individualgrowth and progress of democracy which recognises voice of dissent,tolerance for discordant notes and acceptance of different voices, albeit

83 AIR 1950 SC 27

84 (2015) 1 SCC 192

Athe right to equality under Article 14 and right to dignity as part ofArticle 21 have their own significance. The aforesaid proposition hasbeen reiterated by Dr. D.Y. Chandrachud, J., in India Young LawyersAssociation and Others (Sabarimala Temple, In RE.) v. State ofKerala and Others,[85] which decision refers to the four precepts whichemerge from the Preamble, namely, justice, in its social, economic andBpolitical dimensions; individual liberty in the matter of thought, expression,belief, faith and worship; equality of status and opportunity amongst allcitizens; and sense of fraternity amongst all citizens that assures thedignity of human life. Individual dignity can be achieved in regimewhich recognises equality with other citizens regardless of one’s religiousCbeliefs or the group to which one belongs. Religious beliefs and faithsensure wider acceptance of human dignity and liberty, but when conflictarises between the two, the quest for human dignity, liberty and equalitymust prevail. Constitutional interpretation must bring sense of equilibrium-a balance, so that read individually and together, the provisions of theConstitution exist in contemporaneous accord. Thus, effort should beDmade to have synchrony between different parts of the Constitution anddifferent rights should be interpreted together so that they exist in harmony.Freedoms elaborated in Part III are exercised within the society whichare networked. Freedoms, therefore, have linkages which cannot beignored. In Subramanian Swamy, this Court had referred to aEcompendium of judgments dwelling on balancing of fundamental rightswhen the right of citizen comes in conflict with different fundamentalright also granted by the Constitution as each citizen is entitled to enjoyeach and every one of the freedoms together and the Constitution doesnot prefer one freedom to another. In Ram Jethmalani and Others v.Union of India and Others,[86] this Court has observed that rights ofFcitizens under Article 19(1) have to be balanced against the rights ofcitizens and persons under Article 21 and the latter rights cannot besacrificed as this would lead to detrimental consequences and evenanarchy. Constitutional rights no doubt very important, possibly are notmade absolute as they may come into conflict with each other and whenGcompeting they have to be qualified and balanced. In Noise Pollution(V), In Re.[87]it was observed that Article 19(1)(a) cannot be pressedinto service for defeating the fundamental right guaranteed by Article 21

85 (2019) 11 SCC 186 (2011) 8 SCC 1H87 (2005) 5 SCC 733

as if one claims to right to speech, the others have the right to listen ordecline to listen. person speaking cannot violate the rights of others ofpeaceful, comfortable and pollution free right guaranteed by Article 21.

44. Right to equality enshrined in Article 14 is recognition that theprinciple of equality is inherent in the rule of law. In the positive sense, itmeans absence of any privilege for particular individuals and in thenegative sense, no one can be discriminated against; and anybody andeverybody should be treated as equals. The latter is the essence andcore of right to equality and imposes obligation on the State to takenecessary steps so that every individual is given equal respect and enjoysdignity as others, irrespective of caste, creed, religion, identity, sexualpreference etc. Right to equality is embodied not only in Article 14, butalso finds different manifestations in Articles 15 to 18 of Part III, andArticles 38, 39, 39A, 41 and 46 of Part IV. Thus, right to equality hasmany facets, and is dynamic and evolving.[88]45. It is not only the Preamble and Articles 14, 21 and othersreferred to above which affirms the right to dignity of the individual.Clause (e) to Article 51A, which incorporates fundamental duties, statesthat it will be the obligation of every citizen to promote harmony and thespirit of common brotherhood amongst all the people of India, transcendingreligious, linguistic and regional or sectional diversities and to renouncepractices derogatory to the dignity of women. Clause (f) states that wemust value and preserve the rich heritage of our composite culture.

46. At this stage, it is necessary to clarify what is meant by theexpression ‘dignity’ in the context of ‘hate speech’ – for an expansivemeaning, if given, would repress and impede freedom to express views,opine and challenge beliefs, ideas and acts. Dignity, in the context ofcriminalisation of speech with which we are concerned, refers to aperson’s basic entitlement as member of society in good standing, hisstatus as social equal and as bearer of human rights and constitutionalentitlements.[89] It gives assurance of participatory equality in inter-personalrelationships between the citizens, and between the State and the citizens,and thereby fosters self-worth.[90] Dignity in this sense does not refer to

88 Indira Sawhney v. Union of India, (1992) Supp. 3 SCC 217 and Amita v. Union ofIndia, (2005) 13 SCC 721

89 See – Pat Eatock v. Andrew Bolt

90 O’Neill at (160) – (161) and Hill v. Church of Scientology of Toronto, (1995) 2 S.C.R.1130 (117) and (120)

Aany particular level of honour or esteem as an individual, as in the caseof defamation which is individualistic. The Supreme Court of the UnitedStates of America in Beauharnais v. Illinois,[91] while upholdingconviction for hate speech, had emphasised that such speech shouldamount to group defamation which though analogous to individualdefamation has been traditionally excluded from free speech protectionBin America. Loss of dignity and self- worth of the targeted group memberscontributes to disharmony amongst groups, erodes tolerance and open-mindedness which are must for multi-cultural society committed to theidea of equality. It affects an individual as member of group. It ishowever necessary that at least two groups or communities must beCinvolved; merely referring to feelings of one community or group withoutany reference to any other community or group does not attract the‘hate speech’ definition. Manzar Sayeed Khan, taking note of theobservations in Bilal Ahmad Kaloo, records that common features ofSections 153A and 505(2) being promotion of feeling of enmity, hatredor ill-will ‘between different’ religious or racial or linguistic or regionalDgroups or castes or communities, involvement of at least two groups orcommunities is necessary. Further, merely inciting the feeling of onecommunity or group without any reference to any other community orgroup would not attract either provision. Definition of ‘hate speech’ asexpounded by Andrew F. Sellars prescribes that hate speech shouldEtarget group or an individual as they relate to group.

47. Preamble to the Constitution consciously puts togetherfraternity assuring dignity of the individual and the unity and integrity ofthe nation. Dignity of individual and unity and integrity of the nation arelinked, one in the form of rights of individuals and other in the form ofFindividual’s obligation to others to ensure unity and integrity of the nation.The unity and integrity of the nation cannot be overlooked and slighted,as the acts that ‘promote’ or are ‘likely’ to ‘promote’ divisiveness,alienation and schematism do directly and indirectly impinge on thediversity and pluralism, and when they are with the objective and intentto cause public disorder or to demean dignity of the targeted groups,Gthey have to be dealt with as per law. The purpose is not to curtail rightto expression and speech, albeit not gloss over specific egregious threatsto public disorder and in particular the unity and integrity of the nation.Such threats not only insidiously weaken virtue and superiority of diversity,but cut-back and lead to demands depending on the context and occasion,H91 343 U.S. 250 (1952)

for suppression of freedom to express and speak on the ground ofreasonableness. Freedom and rights cannot extend to create publicdisorder or armour those who challenge integrity and unity of the countryor promote and incite violence. Without acceptable public order, freedomto speak and express is challenged and would get restricted for thecommon masses and law-abiding citizens. This invariably leads to Stateresponse and, therefore, those who indulge in promotion and incitementof violence to challenge unity and integrity of the nation or public disordertend to trample upon liberty and freedom of others.

48. Before referring to provisions of the Penal Code, we wouldlike to refer to an article by Alice E. Marwick and Ross Miller of FordhamUniversity, New York (USA),[92] elucidating on three distinct elementsthat legislatures and courts can use to define and identify ‘hate speech’,namely – content-based element, intent-based element and harm-basedelement (or impact-based element). The content-based element involvesopen use of words and phrases generally considered to be offensive to aparticular community and objectively offensive to the society. It caninclude use of certain symbols and iconography. By applying objectivestandards, one knows or has reasonable grounds to know that the contentwould allow anger, alarm or resentment in others on the basis of race,colour, creed, religion or gender. The intent-based element of ‘hate speech’requires the speaker’s message to intend only to promote hatred, violenceor resentment against particular class or group without communicatingany legitimate message. This requires subjective intent on the part ofthe speaker to target the group or person associated with the class/group. The harm or impact-based element refers to the consequencesof the ‘hate speech’, that is, harm to the victim which can be violent orsuch as loss of self- esteem, economic or social subordination, physicaland mental stress, silencing of the victim and effective exclusion fromthe political arena. Nevertheless, the three elements are not watertightsilos and do overlap and are interconnected and linked. Only when theyare present that they produce structural continuity to constitute ‘hatespeech’.

49. On the aspect of content, Ramesh states that the effect ofthe words must be judged from the standard of reasonable, strongminded,firm and courageous men and not by those who are weak and ones withvacillating minds, nor of those who scent danger in every hostile point of

92 ‘Online harassment, defamation, and hateful speech: primer of the legal landscape’

Aview. The test is, as they say in English Law, – ‘the man on the top ofa Clapham omnibus’. Therefore, to ensure maximisation of free speechand not create ‘free speaker’s burden’, the assessment should be fromthe perspective of the top of the reasonable member of the public,excluding and disregarding sensitive, emotional and atypical. It is almostakin or marginally lower than the prudent man’s test. The test ofBreasonableness involves recognition of boundaries within whichreasonable responses will fall, and not identification of finite number ofacceptable reasonable responses. Further, this does not mean exclusionof particular circumstances as frequently different persons actingreasonably will respond in different ways in the context andCcircumstances. This means taking into account peculiarities of thesituation and occasion and whether the group is likely to get offended.At the same time, tolerant society is entitled to expect tolerance asthey are bound to extend to others.50. Richard Delgado[93] has proposed definition of ‘hate speech’Das language that was intended to demean group which reasonableperson would recognise as ‘racial insult’. Mari J. Matsuda[94] hasreferred to ‘hate speech’ as message of racial inferiority, prosecutorial,hateful and degraded. Kenneth Ward[95] has analysed ‘hate speech’ as aform of expression, through which the speaker primarily intends to vilify,humiliate or incite hatred against their targets. As explained below,E‘content’ has relation with the subject-matter, but is not synonymouswith the subject-matter. ‘Content’ has more to do with the expression,language and message which should be to vilify, demean and incitepsychosocial hatred or physical violence against the targeted group.

51. The ‘context’, as indicated above, has certain key variable,Fnamely, ‘who’ and ‘what’ is involved and ‘where’ and the ‘occasion,time and under what circumstances’ the case arises. The ‘who’ is alwaysplural for it encompasses the speaker who utters the statement thatconstitutes ‘hate speech’ and also the audience to whom the statementis addressed which includes both the target and the others. Variable

G93 ‘Words that Wound: tort Action for Racial Insults, Epithets, and Name-Calling’, 17Harv. C.R.- C.L.L.rev. 133 (1982)

94 ‘Public Response to Racist Speech: Considering the Victim’s Story’, 87 Mich.L.Rev.2320 (1989)

95 ‘Free Speech and the Development of Liberal Virtues: An Examination of theControversies Involving Flag Burning and Hate Speech’, 52 U.Miami K. Rev. 733H(1998)

context review recognises that all speeches are not alike. This is notonly because of group affiliations, but in the context of dominant grouphate speech against vulnerable and discriminated group, and also theimpact of hate speech depends on the person who has uttered the words.[96]The variable recognises that speech by ‘a person of influence’ such asa top government or executive functionary, opposition leader, political orsocial leader of following, or credible anchor on T.V. show carries afar more credibility and impact than statement made by commonperson on the street. Latter may be driven by anger, emotions, wrongperceptions or mis-information. This may affect their intent. Impact oftheir speech would be mere indifference, meet correction/criticism bypeers, or sometimes negligible to warrant attention and hold that theywere likely to incite or had attempted to promote hatred, enmity etc.between different religious, racial, language or regional groups. Further,certain categories of speakers may be granted degree of latitude interms of the State response to their speech. Communities with historyof deprivation, oppression, and persecution may sometimes speak inrelation to their lived experiences, resulting in the words and tone beingharsher and more critical than usual. Their historical experience oftencomes to be accepted by the society as the rule, resulting in their wordslosing the gravity that they otherwise deserve. In such situation, it islikely for persons from these communities to reject the tenet of civility,as polemical speech and symbols that capture the emotional loading canplay strong role in mobilising.[97] Such speech should be viewed notfrom the position of person of privilege or community without such ahistorical experience, but rather, the courts should be more circumspectwhen penalising such speech. This is recognition of the denial of dignityin the past, and the effort should be reconciliatory. Nevertheless, suchspeech should not provoke and ‘incite’ – as distinguished from discussionor advocacy – ‘hatred’ and violence towards the targeted group.Likelihood or similar statutory mandate to violence, public disorder or‘hatred’ when satisfied would result in penal action as per law. Everyright and indulgence has limit. Further, when the offending act createspublic disorder and violence, whether alone or with others, then the aspect96 Hate Speech in Constitutional Jurisprudence: Comparative Analysis by MichelRosenfeld, 24 Cardozo L. Rev. 1523 2002-2003

97 Myra Mrx Ferree, William A. Gamson, Jurgen Gerhards and Dieter Rucht, ‘FourModels of the Public Sphere in Modern Democracies,’ published in THEORY ANDSOCIETY, Vol. 31, No. 3 (June, 2002), pp. 289-324

DEF

Aof ‘who’ and question of indulgence would lose significance and may beof little consequence.

52. Persons of influence, keeping in view their reach, impact andauthority they yield on general public or the specific class to which theybelong, owe duty and have to be more responsible. They are expectedBto know and perceive the meaning conveyed by the words spoken orwritten, including the possible meaning that is likely to be conveyed.With experience and knowledge, they are expected to have higherlevel of communication skills. It is reasonable to hold that they would becareful in using the words that convey their intent. The reasonable-man’stest would always take into consideration the maker. In other words, theCexpression ‘reasonable man’ would take into account the impact aparticular person would have and accordingly apply the standard, justlike we substitute the reasonable man’s test to that of the reasonableprofessional when we apply the test of professional negligence.[98] This isnot to say that persons of influence like journalists do not enjoy the sameDfreedom of speech and expression as other citizens, as this would begrossly incorrect understanding of what has been stated above. This isnot to dilute satisfaction of the three elements, albeit to accept importanceof ‘who’ when we examine ‘harm or impact element’ and in givencase even ‘intent’ and/or ‘content element’.

E53. Further, the law of ‘hate speech’ recognises that all speakersare entitled to ‘good faith’ and ‘(no)-legitimate purpose’ protection. ‘Goodfaith’ means that the conduct should display fidelity as well as aconscientious approach in honouring the values that tend to minimiseinsult, humiliation or intimidation. The latter being objective, whereas theformer is subjective. The important requirement of ‘good faith’ is thatFthe person must exercise prudence, caution and diligence. It requiresdue care to avoid or minimise consequences. ‘Good faith’ or ‘no-legitimatepurpose’ exceptions would apply with greater rigour to protect any genuinewith practice accepted as proper by reasonable body of medicalmen skilled in that particular art...Putting it the other way round, doctorGis not negligent, if he is acting in accordance with such practice, merelybecause there is body of opinion that takes contrary view.” academic,artistic, religious or scientific purpose, or for that matter any purposethat is in public interest, or publication of fair and accurate report of

98 In Bolam v. Friern Hospital Management Committee, [1957] 2 All E.R. 118, it wasHobserved: “A doctor is not guilty of negligence if he has acted in accordance

any event or matter of public interest.[99] Such works would get protectionwhen they were not undertaken with specific intent to cause harm.These are important and significant safeguards. They highlight importanceof intention in ‘hate speech’ adjudication. ‘Hate speech’ has no redeemingor legitimate purpose other than hatred towards particular group. Apublication which contains unnecessary asides which appear to have noreal purpose other than to disparage will tend to evidence that thepublications were written with mala fide intention. However, opinionsmay not reflect mala fide intention.54. The present case, it is stated, does not relate to ‘hate speech’causally connected with the harm of endangering security of the State,but with ‘hate speech’ in the context of clauses (a) and (b) to sub-section (1) of Section 153A, Section 295A and sub-section (2) to Section505 of the Penal Code. In this context, it is necessary to draw distinctionbetween ‘free speech’ which includes the right to comment, favour orcriticise government policies; and ‘hate speech’ creating or spreadinghatred against targeted community or group. The former is primarilyconcerned with political, social and economic issues and policy matters,the latter would not primarily focus on the subject matter but on thesubstance of the message which is to cause humiliation and alienation ofthe targeted group. The object of criminalising the latter type of speechis to protect the dignity (as explained above) and to ensure political andsocial equality between different identities and groups regardless of caste,creed, religion, sex, gender identity, sexual orientation, linguistic preferenceetc. Freedom to express and speak is the most important condition forpolitical democracy. Law and policies are not democratic unless theyhave been made and subjected to democratic process includingquestioning and criticism. Dissent and criticism of the electedgovernment’s policy, when puissant, deceptive or even false would beethically wrong, but would not invite penal action. Elected representativesin power have the right to respond and dispel suspicion. The ‘marketplace of ideas’ and ‘pursuit of truth’ principle are fully applicable.Government should be left out from adjudicating what is true or false,good or bad, valid or invalid as these aspects should be left for opendiscussion in the public domain. This justification is also premised on theconviction that freedom of speech serves an indispensable function indemocratic governance without which the citizens cannot successfully

99 Racial and Religious Tolerance, 2001 (Victoria, Australia)

Acarry out the task to convey and receive ideas. Political speech relatingto government policies requires greater protection for preservation andpromotion of democracy. Falsity of the accusation would not be sufficientto constitute criminal offence of ‘hate speech’. The Constitutional Benchdecision of this Court in Kedar Nath Singh and the subsequent decisionshave clearly and uniformly held that there is difference betweenB‘government established by law’ and ‘persons for the time being engagedin carrying on administration’ and that comment or criticism of thegovernment action in howsoever strong words must be protected andcannot be ground to take penal action unless the words written orspoken, etc. have pernicious tendency or intention of creating publicCdisorder. Without exciting those feelings which generate inclination tocause public disorder by acts of violence, political views and criticismcannot be made subject matter of penal action. Reference to later decisionin Arun Ghosh drawing distinction between serious and aggravated fromof breaches of public order that endanger public peace and minorbreaches that do not affect public at large would be apposite. InDconsonance with the constitutional mandate of reasonable restrictionand doctrine of proportionality in facts of each case it has to be ascertainedwhether the act meets the top of Clapham omnibus test and whetherthe act was ‘likely’ to lead to disturbance of the current life of thecommunity so as to amount to disturbance of public order; or it mayEaffect an individual or some individuals leaving the tranquillity of thesociety undisturbed. The latter and acts excluded on application of thetop of Clapham omnibus test are not covered. Therefore, anti-democratic speech in general and political extremist speech in particular,which has no useful purpose, if and only when in the nature of incitementto violence that ‘creates’, or is ‘likely to create’ or ‘promotes’ or isF‘likely to promote’ public disorder, would not be protected.55. Sometimes, difficulty may arise and the courts and authoritieswould have to exercise discernment and caution in deciding whether the‘content’ is political or policy comment, or creates or spreads hatredagainst the targeted group or community. This is of importance andGsignificance as overlap is possible and principles have to be evolved todistinguish. We would refer to one example to illustrate the difference.Proponents of affirmative action and those opposing it, are perfectly andequally entitled to raise their concerns and even criticise the policiesadopted even when sanctioned by statute or meeting constitutional

scrutiny, without any fear or concern that they would be prosecuted orpenalised. However, penal action would be justified when the speechproceeds beyond and is of the nature which defames, stigmatises andinsults the targeted group provoking violence or psychosocial hatred.The ‘content’ should reflect hate which tends to vilify, humiliate andincite hatred or violence against the target group based upon identity ofthe group beyond and besides the subject matter.

56. Our observations are not to say that persons of influence oreven common people should fear the threat of reprisal and prosecution,if they discuss and speak about controversial and sensitive topics relatingto religion, caste, creed, etc. Such debates and right to express one’sviews is protected and cherished right in our democracy. Participantsin such discussions can express divergent and sometimes extreme views,but should not be considered as ‘hate speech’ by itself, as subscribing tosuch view would stifle all legitimate discussions and debates in publicdomain. Many times, such discussions and debates help in understandingdifferent view-points and bridge the gap. Question is primarily one ofintent and purpose. Accordingly, ‘good faith’ and ‘no legitimate purpose’exceptions would apply when applicable.

57. On the aspect of truth or true facts, reference can be made tothe decision of this Court in K.A. Abbas, which pertained to thedocumentary called ‘A Tale of Four Cities’ portraying contrast betweenthe lives of rich and poor in the four principal cities of the country. Thechallenge was to the grant of certificate for exhibition restricted to adults.It was observed that audience in India can be expected to view withequanimity the different historical facts and stories. There is no bar inshowing carnage or bloodshed which have historical value and depictionof such scenes as the sack of Delhi by Nadir Shah may be permissible,if handled delicately as part of an artistic portrayal of confrontationwith Mohd. Shah Rangila. Clearly, the restrictions were not to be reducedto the level where the protection to the least capable and the mostdeprived amongst us would be applicable. In Ebrahim Suleiman Saitv. M. C. Mohammed and Another,[100] it was observed that speakingthe truth was not an answer to the charge of corrupt practice and whatwas relevant was whether the speech had promoted or had sought topromote feelings of enmity or hatred. The likelihood must be judgedfrom healthy and reasonable standard thereby accepting the position

Athat historical truth may be relevant and important factor. However,the historical truth must be depicted without in any way disclosing orencouraging hatred or enmity between different classes or communities.In Lalai Singh Yadav and Another v. State of Uttar Pradesh,[101] theAllahabad High Court had observed that the book written by Dr. B. R.Ambedkar throwing light on the oppression and exploitation of DalitsBand suggesting conversion to Buddhism was couched in restrainedlanguage and did not amount to an offence. Rational criticism of religioustenets, is acceptable as legitimate criticism, is not an offence for noreasonable person of normal susceptibilities would object to it. InRamesh, challenge to the serial ‘Tamas’ was rejected on the groundCthat it was an instructive serial revealing an evil facet of history withinpermissible extent of examination even if it depicted pre-partitioncommunal tension and violence. hurt, which is product of benevolentintent, may incite negative attitudes to the victim but would fall short ofcriminal hurt, i.e. hatred. Watching the bloodshed that accompaniedpartition, the average person will “learn from the mistakes of the pastDand realise the machinations of the fundamentalists and will not perhapscommit those mistakes again”. Knowledge of tragic experiences of thepast would help “fashion our present in rational and reasonable mannerand view our future with wisdom and care”. Quoting Lord Morley,Mukharji, J. noted in paragraph 20:

E“20...It has been said by Lord Morley in “On Compromise” thatit makes all the difference in the world whether you put truth inthe first place or in the second place. It is true that writer or apreacher should cling to truth and right, if the very heavens fall.This is universally accepted basis. Yet in practice, all schoolsFalike are forced to admit the necessity of measure ofaccommodation in the very interests of truth itself. Fanatic is aname of such ill-repute, exactly because one who deserves to beso called injures good causes by refusing timely and harmlessconcession; by irritating prejudices that wiser way of urging hisown opinion might have turned aside; by making no allowances,Grespecting no motives, and recognising none of those qualifyingprinciples that are nothing less than necessary to make his ownprinciple true and fitting in given society. Judged by all standardsof common man’s point of view of presenting history with

lesson in this film, these boundaries appear to us could (sic to)H101 1971 Cri LJ 1773 (FB) (Allahabad)

have been kept in mind. This is also the lesson of history thatnaked truth in all times will not be beneficial but truth in its properlight indicating the evils and the consequences of those evils isinstructive and that message is there in “Tamas” according to theviews expressed by the two learned Judges of the High Court.They viewed it from an average, healthy and commonsense pointof view. That is the yardstick. There cannot be any apprehensionthat it is likely to affect public order or it is likely to incite into (sic)the commission of any offence. On the other hand, it is morelikely that it will prevent incitement to such offences in future byextremists and fundamentalists.”It should also be noted that contrary to the positivist claim ofsingularity and absoluteness of ‘truth’, it may, in actuality, be subjectiveelement, making it one person’s relative truth over another’s. Culturalvalue system, historical experiences, lived realities of social systems andhierarchies – all these are determinants in how an individual perceivesthe truth to be. George Bernard Shaw has said that our whole theory offreedom of speech and opinion for all citizens rests not on the assumptionthat everybody was right, but on the certainty that everybody was wrongon some point on which somebody else was right, so that there was apublic danger in allowing anybody to go unheard.[102] Many so-called truthshave been rectified and corrected because they were disputedscientifically or economically, socially and politically. One should not ruleout possibility of divergency between truth and popular belief or evensituations that are described as epistemological problem of the ‘posttruth’ era, which is not that people do not value truth, but some maybelieve and accept falsehoods.[103] Nevertheless, in many ways, freespeech has empowered those who were marginalised and discriminatedand thus it would be wholly incorrect and mistake to assume that freespeech is an elite concept and indulgence.

58. On the question of harm, the legislations refer to actual orsometimes likely or anticipated danger, of which the latter must not beremote, conjectural or farfetched. It should have proximate and directnexus with the expression ‘public order’ etc. Otherwise, the commitmentto freedom of expression and speech would be suppressed without the

102 George Bernard Shaw, Socialism off Millionaires, 16 (1901)

103 Joseph Blocher, ‘Free Speech and Justified True Belief’, Harvard Law Review,Vol. 133, No.2, December 2019.

Acommunity interest being in danger. In the Indian context, the tests of‘clear and present danger’ or ‘imminent lawless action’ unlike UnitedStates, are identical as has been enunciated in the case of ShreyaSinghal. The need to establish proximity and causal connection betweenthe speech with the consequences has been dealt with and explained inDr. Ram Manohar Lohia in great detail. In the case of actual occurrenceBof public disorder, the cause and effect relationship may be establishedby leading evidence showing the relationship between the ‘speech’ andthe resultant ‘public disorder’. In other cases where public disorder hasnot occurred due to police, third party intervention, or otherwise, the‘clear and present danger’ or ‘imminent lawless action’ tests are ofCrelevance and importance. ‘Freedom and rational’ dictum should beapplied in absence of actual violence, public disorder etc. Further, whenreference is to likelihood, the chance is said to be likely when the possibilityis reasonably or rather fairly certain, i.e. fairly certain to occur than not.Therefore, in absence of actual violence, public disorder, etc., somethingmore than words, in the form of ‘clear and present danger’ or ‘imminentDlawless action’, either by the maker or by others at the maker’s instigationis required. This aspect has been examined subsequently whileinterpreting the penal provisions.

59. We have repeatedly referred to the word ‘tolerance’, andnoted that the expression ‘who’ refers to both the speaker and the targetedEaudience; and will subsequently refer to the ratio of the Calcutta HighCourt judgment in P.K. Chakravarty v. The King,[104] that somethingmust be known of the kind of people to whom the words are addressed.Similarly, in paragraph 49, we have observed that tolerant society isentitled to expect tolerance as they are bound to extend to others. TheFexpression ‘tolerance’ is, therefore, important, yet defining it isproblematic as it has different meanings. We need not examine thephilosophies or the meanings in detail, and would prefer to quote Article1 from the Declaration of Principles of Tolerance by the Member Statesof the United Nations Educational, Scientific and Cultural Organisationadopted in its meeting in Paris at the 28[th] session of the GeneralGConference, which reads as under:

“Article 1 - Meaning of tolerance

1.1 Tolerance is respect, acceptance and appreciation of the richdiversity of our world’s cultures, our forms of expression and waysH104 AIR 1926 Cal. 1133

of being human. It is fostered by knowledge, openness,communication, and freedom of thought, conscience and belief.Tolerance is harmony in difference. It is not only moral duty, it isalso political and legal requirement. Tolerance, the virtue thatmakes peace possible, contributes to the replacement of the cultureof war by culture of peace.

1.2 Tolerance is not concession, condescension or indulgence.Tolerance is, above all, an active attitude prompted by recognitionof the universal human rights and fundamental freedoms of others.In no circumstance can it be used to justify infringements of thesefundamental values. Tolerance is to be exercised by individuals,groups and States.

1.3 Tolerance is the responsibility that upholds human rights,pluralism (including cultural pluralism), democracy and the rule oflaw. It involves the rejection of dogmatism and absolutism andaffirms the standards set out in international human rightsinstruments.

1.4 Consistent with respect for human rights, the practice oftolerance does not mean toleration of social injustice or theabandonment or weakening of one’s convictions. It means thatone is free to adhere to one’s own convictions and accepts thatothers adhere to theirs. It means accepting the fact that humanbeings, naturally diverse in their appearance, situation, speech,behaviour and values, have the right to live in peace and to be asthey are. It also means that one’s views are not to be imposed onothers.”

There are multiple justifications for ‘tolerance’, which includerespect for autonomy; general commitment to pacifism; concern forother virtues such as kindness and generosity; pedagogical concerns; adesire for reciprocity; and sense of modesty about one’s ability tojudge the beliefs and actions of others.[105] However, tolerance cannot beequated with appeasement, permissiveness, or indifference. It is alsonot identical to neutrality. Toleration requires self-consciousness and self-control in sense that it is restraint of negative judgment that is freeand deliberate. It implies no lack of commitment to one’s own belief but

105 Internet Encyclopaedia of Philosophy, Toleration by Andrew Fiala, ISSN 2161-0002

Arather it condemns oppression or persecution of others.[106] Interpreted inthis sense, there is no ‘paradox of toleration’.[107] The paradox whetherthose who express their views or activities that are themselves intolerantshould be tolerated is answered by making evaluative judgment predicatedon rational universal principles.[108] The test accepts rational argumentprinciple to keep intolerant philosophies in check. Thus, tolerance is notBto accept things that are better to overcome,[109] or when practices reflectintolerance within themselves, like disregard for human rights andprinciples of equality and fraternity. Further, there may even be unjustifiedreligious beliefs in relation to morality, politics, origin of humanity, socialhierarchies, etc. which should not be tolerated.[110] The argument canCalso be grounded on comprehensive moral theory.[111] Tolerance alsomeans developing an ‘overlapping consensus’ between individuals andgroups with diverse perspectives to find reason to agree about certainprinciples of justice.[112] It is being fair to allow reasonable consensus toemerge despite differences. In essence, it implies non-discrimination ofindividuals or groups, but without negating the right to disagree andDdisapprove belief and behaviour. It signifies that all persons or groupsare equal, even when all opinions and conduct are not equal. It alsomeans use of temperate language and civility towards others. In thecorrect and true sense, undoubtedly ‘tolerance’ is great virtue in allsocieties, which when practiced by communities, gets noticed,Eacknowledged and appreciated.

106 John F. Kennedy

107 Karl Popper in The Open Society and Its Enemies, who has observed:“...If we extend unlimited tolerance even to those who are intolerant, if we are notFprepared to defend tolerant society against the onslaught of the intolerant, then thetolerant will be destroyed, and tolerance with them...”

108 According to Martin Packer, at least since Immanuel Kant and David Hume, moralityhas been seeing as needing to take the form of ‘rational, universal principles’ that wouldguide the autonomous individual. These principles would necessarily transcend themany dictates of specific societies and cultures; the dictates are contingent while moralityand the good must be universally compelling.G109 Marjoka Van Doorn, the Nature of Tolerance and the Social Circumstances in Whichit Emerges, Current Sociology Review, 2014, Vol. 62(6) 905-927

110 Sam Hariss, The End of Faith

111 Michael Sandel Democracy’s Discontent (1998)

112 John Rawls, Theory of Justice (1971). Rawls idea of justice as fairness is based uponprinciple that justice is political and not necessarily on moral principles.H

(iv) Interpretation of the statutory provisions

60.We would now interpret Section 153A of the Penal Code, whichreads as under:

“153A. Promoting enmity between different groups ongrounds of religion, race, place of birth, residence,language, etc., and doing acts prejudicial to maintenance ofharmony.— (1) Whoever—

(a) by words, either spoken or written, or by signs or by visiblerepresentations or otherwise, promotes or attempts to promote,on grounds of religion, race, place of birth, residence, language,caste or community or any other ground whatsoever, disharmonyor feelings of enmity, hatred or ill-will between different religious,racial, language or regional groups or castes or communities, or

(b)commits any act which is prejudicial to the maintenance ofharmony between different religious, racial, language or regionalgroups or castes or communities, and which disturbs or is likely todisturb the public tranquillity, or

(c) organises any exercise, movement, drill or other similar activityintending that the participants in such activity shall use or be trainedto use criminal force or violence or knowing it to be likely that theparticipants in such activity will use or be trained to use criminalforce or violence, or participates in such activity intending to useor be trained to use criminal force or violence or knowing it to belikely that the participants in such activity will use or be trained touse criminal force or violence, against any religious, racial, languageor regional group or caste or community and such activity, for anyreason whatsoever causes or is likely to cause fear or alarm or afeeling of insecurity amongst members of such religious, racial,language or regional group or caste or community,

shall be punished with imprisonment which may extend to threeyears, or with fine, or with both.

Offence committed in place of worship, etc.— (2) Whoevercommits an offence specified in sub-section (1) in any place ofworship or in any assembly engaged in the performance of religiousworship or religious ceremonies, shall be punished with

Aimprisonment which may extend to five years and shall also beliable to fine.”

61. In the present case, we are not concerned with clause (c) tosub- section (1) to Section 153A and hence we would not examine thesame. Section 153A has been interpreted by this court in Manzar SayeedBKhan and Balwant Singh and other cases. It would be, however,important to refer to the legislative history of this Section as the samewas introduced by the Indian Penal Code (Amendment) Act, 1898 onthe recommendation of the Select Committee. The Section then enactedhad referred to words, spoken or written, or signs or visible representationCor other means that promote or attempt to promote feeling of enmity orhatred between different classes of citizens of India which shall bepunished with imprisonment that may extend to two years or fine or withboth. The explanation to the said Section was as under:

“Explanation.– It does not amount to an offence within theDmeaning of this section to point out without malicious intentionand with an honest view to their removal, matters which areproducing or have tendency to produce, feelings of enmity orhatred between different classes of Her Majesty’s subjects.”

The original enacted Section was amended with clauses (a) and(b) by the Criminal Law (Amendment) Act, 1969 and clause (c) wasEsubsequently inserted by the Criminal Law (Amendment) Act, 1972.[113]

62. The Calcutta High Court in P.K. Chakravarty had delvedinto the question of intention and had observed that the intention as towhether or not the person accused was promoting enmity is to be collectedfrom the internal evidence of the words themselves, but this is not to sayFthat other evidence cannot be looked into. Likewise, while examiningthe question of likelihood to promote ill- feelings the facts andcircumstances of that time must be taken into account. Something mustbe known of the kind of people to whom the words are addressed. Wordswill be generally decisive, especially in those cases where the intentionGis expressly declared if the words used naturally, clearly or indubitablyhave such tendency. Then, such intention can be presumed as it is thenatural result of the words used. However, the words used and theirtrue meaning are never more than evidence of intention, and it is the real

113 The Wounded Vanity of Governments in ‘Republic of Rhetoric: Free Speech and theHConstitution of India’ by Abhinav Chandrachud, Penguin Books India (2017)

intention of the person charged that is the test. The judgment rejects theconcept of constructive intention. Similarly, the Lahore High Court inDevi Sharan Sharma had observed that intention can be deduced frominternal evidence of the words as well as the general policy of the paperin which the concerned article was published, consideration of the personfor whom it was written and the state of feeling between the twocommunities involved. In case the words used in the article are likely toproduce hatred, they must be presumed to be intended to have that effectunless the contrary is shown. The Bombay High Court in Gopal VinayakGodse has observed that the intention to promote enmity or hatred is nota necessary ingredient of the offence. It is enough to show that thelanguage of the writing is of the nature calculated to promote feelings ofenmity or hatred, for person must be presumed to intend the naturalconsequences of his act. The view expressed by the Bombay High Courtin Gopal Vinayak Godse lays considerable emphasis on the words itself,but the view expressed in P.K. Chakravarthy and Devki Sharma takea much broader and wider picture which, in our opinion, would be theright way to examine whether an offence under Section 153A, clauses(a) and (b) had been committed. The ordinary reasonable meaning ofthe matter complained of may be either the literal meaning of the publishedmatter or what is implied in that matter or what is inferred from it. Aparticular imputation is capable of being conveyed means and implies itis reasonably so capable and should not be strained, forced or subjectedto utterly unreasonable interpretation. We would also hold that deliberateand malicious intent is necessary and can be gathered from the wordsitself- satisfying the test of top of Clapham omnibus, the who factor-person making the comment, the targeted and non targeted group, thecontext and occasion factor- the time and circumstances in which thewords or speech was made, the state of feeling between the twocommunities, etc. and the proximate nexus with the protected harm tocumulatively satiate the test of ‘hate speech’. ‘Good faith’ and ‘nolegitimate purpose’ test would apply, as they are important in consideringthe intent factor.

63. In Balwant Singh this Court had accepted that mens rea isan essential ingredient of the offence under Section 153A and only whenthe spoken or written words have the intention of creating public disorderfor disturbance of law and order or affect public ‘tranquillity’, an offencecan be said to be committed. This decision was relied on in Bilal Ahmed

AKaloo[114]while referring to and interpreting sub-section (2) to Section505 of the Penal Code. Similarly, in Manzar Sayeed Khan, the intentionto promote feeling of enmity or hatred between different classes of peoplewas considered necessary as Section 153A requires the intention to causedisorder or incite the people to violence. The intention has to be judgedprimarily by the language of the book and the circumstances in whichBthe book was written and published.

64. In the context of Section 153A(b) we would hold that publictranquillity, given the nature of the consequence in the form of punishmentof imprisonment of up to three years, must be read in restricted sensesynonymous with public order and safety and not normal law and orderCissues that do not endanger the public interest at large. It cannot begiven the widest meaning so as to fall foul of the requirement ofreasonableness which is constitutional mandate. Clause (b) of Section153A, therefore, has to be read accordingly to satisfy the constitutionalmandate. We would interpret the words ‘public tranquillity’ in clause (b)Dwould mean ordre publique French term that means absence ofinsurrection, riot, turbulence or crimes of violence and would also includeall acts which will endanger the security of the State, but not acts whichdisturb only serenity, and are covered by the third and widest circle oflaw and order. Public order also includes acts of local significanceembracing variety of conduct destroying or menacing public order.EPublic Order in clause (2) to Article 19 nor the statutory provisions makeany distinction between the majority and minority groups with referenceto the population of the particular area though as we have noted abovethis may be of some relevance. When we accept the principle of localsignificance, as sequitur we must also accept that majority and minorityFgroups could have, in given case, reference to local area.65. Section 295A and clause (2) of Section 505 of the Penal Codereads as under:

“295-A. Deliberate and malicious acts intended to outragereligious feelings of any class by insulting its religion orGreligious beliefs.— Whoever, with deliberate and maliciousintention of outraging the religious feelings of any class of citizensof India, by words, either spoken or written, or by signs or byvisible representations or otherwise, insults or attempts to insult

114 Bilal Ahmed Kaloo was overruled on different point in Prakash Kumar AliasHPrakash Bhutto v. State of Gujarat, (2005) 2 SCC 409

the religion or the religious beliefs of that class, shall be punishedwith imprisonment of either description for term which mayextend to three years, or with fine, or with both.

xx xx xx

505. Statements conducing to public mischief.—

xx xx xx

(2) Statements creating or promoting enmity, hatred or ill-willbetween classes.— Whoever makes, publishes or circulates anystatement or report containing rumour or alarming news with intentto create or promote, or which is likely to create or promote, ongrounds of religion, race, place of birth, residence, language, casteor community or any other ground whatsoever, feelings of enmity,hatred or ill-will between different religious, racial, language orregional groups or castes or communities, shall be punished withimprisonment which may extend to three years, or with fine, orwith both.”The two provisions have been interpreted earlier in number ofcases including Ramji Lal Modi, Kedar Nath, Bilal Ahmed Kaloo. Itcould be correct to say that Section 295A of the Penal Code encapsulatesof all three elements, namely, it refers to the content-based elementwhen it refers to words either spoken or written, or by signs or visiblerepresentation or otherwise. However, it does not on the basis of contentalone makes person guilty of the offence. The first portion refers todeliberate and malicious intent on the part of the maker to outrage religiousfeeling of any class of citizens of India. The last portion of Section 295Arefers to the harm-based element, that is, insult or attempt to insult religionsor religious belief of that class. Similarly, sub- section (2) to Section 505refers to person making publishing or circulating any statement orreport containing rumour or alarming news. Thereafter, it refers to theintent of the person which should be to create or promote and thenrefers to the harm-based element, that is, likely to create or promote onthe ground of religion, race, place of birth, residence, language, cast,etc., feeling of enmity, hatred or ill-will between different religions, raciallanguage, religious groups or castes or communities, etc.

66. In Bilal Ahmad Kaloo, this Court had drawn distinctionbetween sub-section (2) to Section 505 and clause (a) to Section 153A

Aof the Penal Code observing that publication is not necessary in thelatter while it is sine qua non under clause (2) of Section 505. Clause(2) of Section 505 of the Penal Code cannot be interpreted disjunctivelyand the words ‘whosoever makes, publishes or circulates’ aresupplemented to each other. The intention of the legislature in providingtwo different sections of the same subject vide single amending act wouldBshow that they cover two different fields of same colour.

67. Clauses (a) and (b) to sub-section (1) to Section 153A of thePenal Code use the words ‘promotes’ and ‘likely’ respectively. Similarly,Section 295-A uses the word ‘attempts’ and sub-section (2) to Section505 uses the words ‘create or promote’. Word ‘likely’ as explained above,Cin our opinion, convey the meaning, that the chance of the event occurringshould be real and not fanciful or remote (Tillmanns Butcheries PtyLtd. v. Australasian Meat Industry Employees’ Union[115]). Thestandard of ‘not improbable’ is too weak and cannot be applied as itwould infringe upon and fall foul of reasonable restriction and the test ofDproportionality. This is the mandate flowing from the catena of judgmentsof the Constitutional Benches which we have referred to earlier andalso the decision in Shreya Singhal drawing distinction betweenadvocacy, discussion and incitement and that only the latter, i.e. theincitement, is punishable whereas the former two would fall within thedomain of freedom to express and convey one’s thoughts and ideas.E‘Incitement’ is restricted term under the American Speech Law whichhas been adopted by us and as per Brandenburg applies when theincitement is imminent or almost inevitable. There has been some criticismthat the said test is too strong, nevertheless, it conveys that the standardhas to be strict. Instigation must necessarily and specifically be suggestiveFof the consequences. Sufficient certainty to incite the consequencesmust be capable of being spelt out to be incitement. Further, it is for theprosecution to show and establish that the standard has been breachedby leading evidence, which can be both oral and documentary. ‘Promote’does not imply mere describing and narrating fact, or giving opinion

criticising the point of view or actions of another person – it requires thatGthe speaker should actively incite the audience to cause public disorder.This active incitement can be gauged by the content of the speech, thecontext and surrounding circumstances, and the intent of the speaker.However, in case the speaker does not actively incite the descent into

public disorder, and is merely pointing out why certain person or groupis behaving in particular manner, what are their demands and theirpoint of view, or when the speaker interviews such person or group, itwould be passive delivery of facts and opinions which may not amountto promotion.

68. The word ‘attempt’, though used in Sections 153-A and 295-A of the Penal Code, has not been defined. However, there are judicialinterpretations that an ‘attempt to constitute crime’ is an act done orforming part of series of acts which would constitute its actualcommission but for an interruption. An attempt is short of actual causationof crime and more than mere preparation. In Aman Kumar v. State ofHaryana,[116] it was held that an attempt is to be punishable becauseevery attempt, although it falls short of success, must create alarm, whichby itself is an injury, and the moral guilt of the offender is same as if hehad succeeded. Moral guilt must be united to injury in order to justifypunishment. Further, in State v. Mohd. Yakub,[117] this Court observed:

“13...What constitutes an attempt is mixed question of law andfact depending largely upon the circumstances of particular case.“Attempt” defies precise and exact definition. Broadly speakingall crimes which consist of the commission of affirmative acts arepreceded by some covert or overt conduct which may be dividedinto three stages. The first stage exists when the culprit firstentertains the idea or intention to commit an offence. In the secondstage he makes preparation to commit it. The third stage is reachedwhen the culprit takes deliberate overt act or step to commit theoffence. Such overt act or step in order to be ‘criminal’ need notbe the penultimate act towards the commission of the offence. Itis sufficient if such acts were deliberately done, and manifest aclear intention to commit the offence aimed, being reasonablyproximate to the consummation of the offence...”

On the scope of proximity, it was elucidated that the measure ofproximity is not in relation to time and place but in relation to intention.

In the context of ‘hate speech’, including the offences related topromoting disharmony or feelings of enmity, hatred or ill-will, and insultingthe religion or the religious beliefs, it would certainly require the actual

Autterance of words or something more than thought which wouldconstitute the content. Without actual utterance etc. it would be merethought, and thoughts without overt act is not punishable. In the case of‘publication’, again mere thought would not be actionable, albeit whetheror not there is an attempt to ‘publish’ would depend on facts. Theimpugned act should be more than mere preparation and reasonablyBproximate to the consummation of the offence, which has beeninterrupted. The question of intent would be relevant. On the question ofthe harm’s element, same test and principle, as applicable in the case of‘likely’ would apply, except for the fact that for intervening reasons orgrounds public disorder or violence may not have taken place.C69. Having interpreted the relevant provisions, we are consciousof the fact that we have given primacy to the precept of ‘interest ofpublic order’ and by relying upon ‘imminent lawless action’ principle, notgiven due weightage to the long-term impact of ‘hate’ speech as apropaganda on both the targeted and non-targeted groups. This is not toDundermine the concept of dignity, which is the fundamental foundationon the basis of which the citizens must interact between themselves andwith the State. This is the considered view of the past pronouncementsincluding the Constitution Bench judgments with which we are bound.Further, ‘hate speech’ meeting the criteria of ‘clear and present danger’or ‘imminent lawless action’ would necessarily have long-term negativeEeffect. Lastly, we are dealing with penal or criminal action and, therefore,have to balance the right to express and speak with retaliatory criminalproceedings. We have to also prevent abuse and check misuse. Thisdictum does not, in any way, undermine the position that we must condemnand check any attempt at dissemination of discrimination on the basis of

Frace, religion, caste, creed or regional basis. We must act with theobjective for promoting social harmony and tolerance by proscribinghateful and inappropriate behaviour. This can be achieved by self-restraint, institutional check and correction, as well as self-regulation orthrough the mechanism of statutory regulations, if applicable. It is not

penal threat alone which can help us achieve and ensure equality betweenGgroups. Dignity of citizens of all castes, creed, religion and region is bestprotected by the fellow citizens belonging to non-targeted groups andeven targeted groups. As stated earlier, in polity committed to pluralism,hate speech cannot conceivably contribute in any legitimate way todemocracy and, in fact, repudiates the right to equality.H

70. Majority of the cases referred to by the petitioner were caseswherein after charge-sheet and trial, this Court had come to theconclusion that no offence had been proved and established under Section153A, 295A or sub-section (2) to Section 505 of the Penal Code. We donot deem it necessary to reproduce the facts of those decisions andapply their ratio in the present case. However, we would like to refer tojudgments where this Court has at the initial stage itself quashed theproceedings arising out of the FIR, namely, Manzar Sayeed Khan,Mahendra Singh Dhoni, Ramesh as well as Balwant Singh to clarifythe ratio.71. In Balwant Singh, this Court, allowing the appeal, had setaside convictions under Sections 124A and 153A of the Penal Code.While we are not concerned with Section 124A, this Court significantlyobserved that the appellants were never leading procession or raisingslogans with the intent to incite people, indicating that the Court did takeinto account the ‘who’ factor as the appellants were unknown andinconsequential. This is of consequence as far as Section 153A of thePenal Code is concerned. Both the content and context, given theoccasion, were highly incriminating and possibly warranted conviction,but as per paragraphs 10 and 11, the court was not convinced that theprosecution witnesses had spoken the whole truth and what slogan(s)was/were actually shouted. Lastly, the harm effect or impact was alsotaken into account. What is acceptable speech in one case, it could bewell argued, should be acceptable in another, and therefore the ratio inBalwant Singh must be applied with caution as the decision hadproceeded on failure of the prosecution. The ‘who’ factor as variablehad weighed with the court. Besides there was no impact or harm.

72. Manzar Sayeed Khan was case wherein the appellantshad published book titled ‘Shivaji: Hindu King in Islamic India’authored by Prof. James W. Laine, Professor of Religious Studies inMacalester College, United States of America, which had led toregistration of FIR against the Indian Publisher and Sanskrit scholarwhose name had appeared in the acknowledgement of the book forhaving helped the author by providing him some information during thelatter’s visit to Pune. The primary reason according to us why the appealwas allowed and the proceedings arising from the FIR were quashed atthe initial stage are reflected in paragraph 19 of the judgment whichnotes that the author was well-known scholar who had done extensive

Aresearch before publishing the book. Further, he had relied upon materialand records at Bhandarkar Oriental Research Institute (BORI), Pune.It was highly improbable to accept that any serious and intense scholarlike the author would have any desire or motive to involve himself inpromoting or attempt to promote any disharmony between communities,castes or religions within the State. Good faith and (no) legitimate purposeBprinciple was effectively applied. These principles were also applied bythis Court in Ramesh holding that the T.V. Serial ‘Tamas’ did not depictcommunal tension or violence to fall foul of Section 153A of the PenalCode and/or was the serial prejudicial to national integration to fall underSection 153B of the Penal Code. Reliance was also placed on the test ofC‘Clapham omnibus’ referred to above. Mahendra Singh Dhoni wasa case in which prosecution under Section 295A was initiated by filing aprivate complaint on the ground that the photograph of the well-knowncricketer, as published in the magazine, was with caption ‘God of BigThings’. It was obvious that prosecution on the basis of content wasabsurd and too farfetched by any standards even if we ignore the intentDor the hurt element.

(v) Validity of First Information Reports (FIRs)

73. Acronym FIR, or the First Information Report, is neither definedin the Criminal Code nor is used therein, albeit it refers to the informationErelating to the commission of cognisable offence. This information, ifgiven orally to an officer in-charge of the police station, is mandated tobe reduced in writing. Information to be recorded in writing need not benecessarily by an eye-witness, and hence, cannot be rejected merelybecause it is hearsay. Section 154 does not mandate nor is this requirementmanifest from other provisions of the Criminal Code. Further, FIR is notFmeant to be detailed document containing chronicle of all intricate andminute details. In Dharma Rama Bhagare v. State of Maharashtra,[118]it was held that an FIR is not even considered to be substantive pieceof evidence and can be only used to corroborate or contradict theinformant’s evidence in the court.G74. In

74. In Lalita Kumari, Constitution Bench, of five judges of thisCourt, has held that Section 154 of the Criminal Code, in unequivocalterms, mandates registration of FIR on receipt of all cognisable offences,subject to exceptions in which case preliminary inquiry is required.

The petitioner has not contended that the present case falls under any ofsuch exceptions. Conspicuously, there is distinction between arrest ofan accused person under Section 41 of the Criminal Code and registrationof the FIR, which helps maintain delicate balance between interest ofthe society manifest in Section 154 of the Criminal Code, which directsregistration of FIR in case of cognisable offences, and protection ofindividual liberty of those persons who have been named in the complaint.The Constitution Bench referring to the decision of this Court in TapanKumar Singh reiterated that the FIR is not an encyclopaedia disclosingall facts and details relating to the offence. The informant who lodgesthe report of the offence may not even know the name of the victim orthe assailant or how the offence took place. He need not necessarily bean eye-witness. What is essential is that the information must disclosethe commission of cognisable offence and the information must providebasis for the police officer to suspect commission of the offence. Thus,at this stage, it is enough if the police officer on the information givensuspects – though he may not be convinced or satisfied – that cognisableoffence has been committed. Truthfulness of the information would be amatter of investigation and only there upon the police will be able toreport on the truthfulness or otherwise. Importantly, in Tapan KumarSingh, it was held that even if information does not furnish all details, itis for the investigating officer to find out those details during the courseof investigation and collect necessary evidence. Thus, the informationdisclosing commission of cognisable offence only sets in motion theinvestigating machinery with view to collect necessary evidence, andthereafter, taking action in accordance with law. The true test for validFIR, as laid down in Lalita Kumari, is only whether the informationfurnished provides reason to suspect the commission of an offence whichthe police officer concerned is empowered under Section 156(1) of theCriminal Code to investigate. The questions as to whether the report istrue; whether it discloses full details regarding the manner of occurrence;whether the accused is named; or whether there is sufficient evidenceto support the allegation are all matters which are alien to considerationof the question whether the report discloses commission of cognisableoffence. As per clauses (1) (b) and (2) of Section 157 of the CriminalCode, police officer may foreclose an FIR before investigation if itappears to him that there is no sufficient ground to investigate. At theinitial stage of the registration, the law mandates that the officer canstart investigation when he has reason to suspect commission of offence.

ARequirements of Section 157 are higher than the requirements of Section154 of the Criminal Code. Further, police officer in given case afterinvestigation can file final report under Section 173 of the CriminalCode seeking closure of the matter.

(vi) Conclusion and reliefB

75. At this stage and before recording our final conclusion, wewould like to refer to decision of this Court in Pirthi Chand wherein ithas been held:

“12. It is thus settled law that the exercise of inherent power ofthe High Court is an exceptional one. Great care should be takenCby the High Court before embarking to scrutinise the FIR/charge-sheet/ complaint. In deciding whether the case is rarest of rarecases to scuttle the prosecution in its inception, it first has to getinto the grip of the matter whether the allegations constitute theoffence. It must be remembered that FIR is only an initiation toDmove the machinery and to investigate into cognizable offence.After the investigation is conducted (sic concluded) and the charge-sheet is laid, the prosecution produces the statements of thewitnesses recorded under Section 161 of the Code in support ofthe charge-sheet. At that stage it is not the function of the court toweigh the pros and cons of the prosecution case or to considerEnecessity of strict compliance of the provisions which areconsidered mandatory and its effect of non- compliance. It wouldbe done after the trial is concluded. The court has to prima facieconsider from the averments in the charge-sheet and the statementsof witnesses on the record in support thereof whether court couldFtake cognizance of the offence on that evidence and proceedfurther with the trial. If it reaches conclusion that no cognizableoffence is made out, no further act could be done except to quashthe charge- sheet. But only in exceptional cases, i.e., in rarest ofrare cases of mala fide initiation of the proceedings to wreakprivate vengeance [issue of process under Criminal ProcedureGCode is availed of. reading of complaint or FIR itself does notdisclose at all any cognizable offence — the court may embarkupon the consideration thereof and exercise the power.

13. When the remedy under Section 482 is available, the HighCourt would be loath and circumspect to exercise its extraordinary

power under Article 226 since efficacious remedy under Section482 of the Code is available. When the court exercises its inherentpower under Section 482, the prime consideration should only bewhether the exercise of the power would advance the cause ofjustice or it would be an abuse of the process of the court. Wheninvestigating officer spends considerable time to collect theevidence and places the charge-sheet before the court, furtheraction should not be short-circuited by resorting to exercise inherentpower to quash the charge-sheet. The social stability and orderrequires to be regulated by proceeding against the offender as itis an offence against the society as whole. This cardinal principleshould always be kept in mind before embarking upon exercisinginherent power. The accused involved in an economic offencedestabilises the economy and causes grave incursion on theeconomic planning of the State. When the legislature entrusts thepower to the police officer to prevent organised commission ofthe offence or offences involving moral turpitude or crimes ofgrave nature and are entrusted with power to investigate into thecrime in intractable terrains and secretive manner in concert,greater circumspection and care and caution should be borne inmind by the High Court when it exercises its inherent power.Otherwise, the social order and security would be put in jeopardyand to grave risk. The accused will have field day in destabilisingthe economy of the State regulated under the relevant provisions.”

The aforesaid ratio was followed by this Court in O.P. Sharma.

76. In Arnab Ranjan Goswami, this Court in almost identicalcircumstances had refused to examine the question whether theproceedings arising out of the FIR filed against journalist should bequashed in exercise of jurisdiction under Article 32 of the Constitutionon the ground that the petitioner must be relegated to pursue equallyefficacious remedies under the Criminal Code, observing:

“49. We hold that it would be inappropriate for the court to exerciseits jurisdiction under Article 32 of the Constitution for the purposeof quashing FIR 164 of 2020 under investigation at the NM JoshiMarg Police Station in Mumbai. In adopting this view, we areguided by the fact that the checks and balances to ensure theprotection of the petitioner’s liberty are governed by the CrPC.

ADespite the liberty being granted to the petitioner on 24 April 2020,it is an admitted position that the petitioner did not pursue availableremedies in the law, but sought instead to invoke the jurisdictionof this Court. Whether the allegations contained in the FIR do ordo not make out any offence as alleged will not be decided inpursuance of the jurisdiction of this Court under Article 32, toBquash the FIR. The petitioner must be relegated to the pursuit ofthe remedies available under the CrPC, which we hereby do. Thepetitioner has an equally efficacious remedy available before theHigh Court. We should not be construed as holding that petitionunder Article 32 is not maintainable. But when the High CourtChas the power under Section 482, there is no reason to by-passthe procedure under the CrPC, we see no exceptional grounds orreasons to entertain this petition under Article 32. There is cleardistinction between the maintainability of petition and whether itshould be entertained. In situation like this, and for the reasonsstated hereinabove, this Court would not like to entertain the petitionDunder Article 32 for the relief of quashing the FIR being investigatedat the NM Joshi Police Station in Mumbai which can be consideredby the High Court. Therefore, we are of the opinion that thepetitioner must be relegated to avail of the remedies which areavailable under the CrPC before the competent court includingEthe High Court.”

77. We respectfully agree with the aforesaid ratio. Ordinarily wewould have relegated the petitioner and asked him to approach theconcerned High Court for appropriate relief, albeit in the present casedetailed arguments have been addressed by both sides on maintainability

Fand merits of the FIRs in question and, therefore, been dealt with by usand rejected at this stage. We do not, in view of this peculiar circumstance,deem it appropriate to permit the petitioner to open another round oflitigation; therefore, we have proceeded to answer the issues underconsideration.

G78. We have already reproduced relevant portions of the transcriptof the debate anchored by the petitioner. It is apparent that the petitionerwas an equal co-participant, rather than mere host. The transcript,including the offending portion, would form part of the ‘content’, butany evaluation would require examination and consideration of the variable‘context’ as well as the ‘intent’ and the ‘harm/impact’. These have to beH

evaluated before the court can form an opinion on whether an offence ismade out. The evaluative judgment on these aspects would be basedupon facts, which have to be inquired into and ascertained by policeinvestigation. ‘Variable content’, ‘intent’ and the ‘harm/impact’ factors,as asserted on behalf of the informants and the State, are factually disputedby the petitioner. In fact, the petitioner relies upon his apology, which asper the respondents/informants is an indication or implied acceptance ofhis acts of commission.79. Having given our careful and in-depth consideration, we donot think it would be appropriate at this stage to quash the FIRs and thusstall the investigation into all the relevant aspects. However, ourobservations on the factual matrix of the present case in this decisionshould not in any manner influence the investigation by the police whoshall independently apply their mind and ascertain the true and correctfacts, on all material and relevant aspects. Similarly, the competentauthority would independently apply its mind in case the police authoritiesseek sanction, and to decide, whether or not to grant the same. Samewould be the position in case charge-sheet is filed. The court wouldapply its mind whether or not to take cognisance and issue summons.By an interim order, the petitioner has enjoyed protection against coercivesteps arising out of and relating to the program telecast on 15.06.2020.Subject to the petitioner cooperating in the investigation, we direct thatno coercive steps for arrest of the petitioner need be taken by the policeduring investigation. In case and if charge-sheet is filed, the court wouldexamine the question of grant of bail without being influenced by thesedirections as well as any findings of fact recorded in this judgment.

80. We are conscious and aware of the decisions of this Court inBhajan Lal, P.P. Sharma and the earlier decision in R.P. Kapur whichheld that the High Court, in exercise of inherent jurisdiction, can quashproceedings in proper case either to prevent abuse of process orotherwise to secure ends of justice. These could be cases where,manifestly, there is legal bar against institution or continuance of theprosecution or the proceedings, such as due to requirement of priorsanction; or where the allegations made in the FIR or the complaint,even if they are taken at their face value and accepted in their entiretydo not prima facie constitute any offence or make out case againstthe accused; or where the allegations in the FIR do not disclose acognizable offence; or where the allegations made in the FIR or complaint

Aare so absurd and inherently improbable on the basis of which no prudentperson can ever reach just conclusion that there is sufficient groundfor proceeding against the accused. Another qualifying category in caseswhere charge-sheet is filed would be those where allegations againstthe accused do constitute the offence alleged, but there is either no legalevidence adduced in support of the case or the evidence adduced clearlyBor manifestly fails to prove the charge. Application of these principlesdepends on factual matrix of each case. Strict and restricted as therequirements are, they are at this stage not satisfied in the present case.

D. The second prayer – multiplicity of FIRs and whetherthey should be transferred and clubbed with the first FIRCregistered at P.S. Dargha, Ajmer, Rajasthan

81. We would now examine the second prayer of the petitionerviz. multiplicity of FIRs being registered in the States of Rajasthan,Maharashtra, Telangana, and Madhya Pradesh (now transferred to UttarPradesh) relating to the same broadcast. Fortunately, both the sides agreeDthat the issue is covered by the decision of this Court in T.T. Antonywhich has been followed in Arnab Ranjan Goswami’s case. It wouldbe appropriate in this regard to thereforereproduce the observations inArnab Ranjan Goswami’s case which are to the following effect:

“28...The law concerning multiple criminal proceedings on theEsame cause of action has been analyzed in judgment of thisCourt in TT Antony v. State of Kerala (“TT Antony”). Speakingfor two judge Bench, Justice Syed Shah Mohammed Quadriinterpreted the provisions of Section 154 and cognate provisionsof the CrPC including Section 173 and observed:

“20…under the scheme of the provisions of Sections 154, 155,156, 157, 162, 169, 170 and 173 CrPC, only the earliest or thefirst information in regard to the commission of cognizableoffence satisfies the requirements of Section 154 CrPC. Thus,there can be no second FIR and consequently there can be nofresh investigation on receipt of every subsequent informationin respect of the same cognizable offence or the sameoccurrence or incident giving rise to one or more cognizableoffences. On receipt of information about cognizable offenceor an incident giving rise to cognizable offence or offencesand on entering the FIR in the station house diary, the officer

in charge of police station has to investigate not merely thecognizable offence reported in the FIR but also other connectedoffences found to have been committed in the course of thesame transaction or the same occurrence and file one or morereports as provided in Section 173 CrPC.”

The Court held that “there can be no second FIR” where theinformation concerns the same cognisable offence alleged in thefirst FIR or the same occurrence or incident which gives rise toone or more cognisable offences. This is due to the fact that theinvestigation covers within its ambit not just the alleged cognisableoffence, but also any other connected offences that may be foundto have been committed. This Court held that once an FIRpostulated by the provisions of Section 154 has been recorded,any information received after the commencement of investigationcannot form the basis of second FIR as doing so would fail tocomport with the scheme of the CrPC. The court observed:

“18…AII other information made orally or in writing after thecommencement of the investigation into the cognizable offencedisclosed from the facts mentioned in the first information reportand entered in the station house diary by the police officer orsuch other cognizable offences as may come to his notice duringthe investigation, will be statements falling under Section 162CrPC. No such information/ statement can properly be treatedas an FIR and entered in the station house diary again, as itwould in effect be second FIR and the same cannot be inconformity with the scheme of CrPC.”

This Court adverted to the need to strike just balance betweenthe fundamental rights of citizens under Articles 19 and 21 andthe expansive power of the police to investigate cognisableoffence. Adverting to precedent, this Court held:

“27…the sweeping power of investigation does not warrantsubjecting citizen each time to fresh investigation by the policein respect of the same incident, giving rise to one or morecognizable offences, consequent upon filing of successive FIRswhether before or after filing the final report under Section173(2) CrPC. It would clearly be beyond the purview ofSections 154 and 156 CrPC, nay, case of abuse of the statutory

power of investigation in given case. In our view case offresh investigation based on the second or successive FIRs,not being counter-case, filed in connection with the same orconnected cognizable offence alleged to have been committedin the course of the same transaction and in respect of whichpursuant to the first FIR either investigation is under way orfinal report under Section 173(2) has been forwarded to theMagistrate, may be fit case for exercise of power underSection 482 CrPC or under Articles 226/227 of theConstitution.”

(Emphasis supplied)

The Court held that barring situations in which counter-case isfiled, fresh investigation or second FIR on the basis of thesame or connected cognisable offence would constitute an “abuseof the statutory power of investigation” and may be fit case forthe exercise of power either under Section 482 of the CrPC orArticles 226/227 of the Constitution.

29. The decision in TT Antony came up for consideration beforea three judge Bench in Upkar Singh v. Ved Prakash (“UpkarSingh”). Justice N Santosh Hegde, speaking for this Court advertedto the earlier decisions of this Court in Ram Lal Narang v.State (Delhi Administration) (“Ram Lal Narang”), KariChoudhary v. Mst. Sita Devi (“Kari Choudhary”) and Stateof Bihar v. JAC Saldanha (“Saldanha”). The Court noted thatin Kari Choudhary, this Court held that:

“11…Of course the legal position is that there cannot be twoFIRs against the same accused in respect of the same case.But when there are rival versions in respect of the same episode,they would normally take the shape of two different FIRs andinvestigation can be carried on under both of them by the sameinvestigating agency.”

30. In Saldanha, this Court had held that the power conferredupon the Magistrate under Section 156(3) does not affect thepower of the investigating officer to further investigate the caseeven after submission of the report under Section 173(8). In UpkarSingh, this Court noted that the decision in Ram Lal Narang is “in

the same line” as the judgments in Kari Choudhary and Saldanhaand held that the decision in TT Antony does not preclude thefiling of second complaint in regard to the same incident as acounter complaint nor is this course of action prohibited by theCrPC. In that context, this Court held:

“23. Be that as it may, if the law laid down by this Court in T.T.Antony case is to be accepted as holding that secondcomplaint in regard to the same incident filed as counter-complaint is prohibited under the Code then, in our opinion,such conclusion would lead to serious consequences. This willbe clear from the hypothetical example given hereinbelow i.e.if in regard to crime committed by the real accused he takesthe first opportunity to lodge false complaint and the same isregistered by the jurisdictional police then the aggrieved victimof such crime will be precluded from lodging complaint givinghis version of the incident in question, consequently he will bedeprived of his legitimate right to bring the real accused tobook. This cannot be the purport of the Code.”

These principles were reiterated by two judge Bench of thisCourt in Babubhai v. State of Gujarat. Dr Justice S Chauhanobserved:

“21. In such case the court has to examine the facts andcircumstances giving rise to both the FIRs and the test ofsameness is to be applied to find out whether both the FIRsrelate to the same incident in respect of the same occurrenceor are in regard to the incidents which are two or more partsof the same transaction. If the answer is in the affirmative, thesecond FIR is liable to be quashed. However, in case thecontrary is proved, where the version in the second FIR isdifferent and they are in respect of the two different incidents/crimes, the second FIR is permissible. In case in respect ofthe same incident the accused in the first FIR comes forwardwith different version or counterclaim, investigation on boththe FIRs has to be conducted.”

This Court held that the relevant enquiry is whether two or moreFIRs relate to the same incident or relate to incidents which formpart of the same transactions. If the Court were to conclude in

Athe affirmative, the subsequent FIRs are liable to be quashed.However, where the subsequent FIR relates to different incidentsor crimes or is in the form of counter-claim, investigation mayproceed. [See also in this context Chirra Shivraj v. State ofAndhra Pradesh and Chirag M Pathak v. Dollyben KantilalPatel].

The aforesaid quotation refers to the judgment of this Court inBabubhai v. State of Gujarat and Others[119]wherein the test todetermine sameness of the FIRs has been elucidated as when the subjectmatter of the FIRs is the same incident, same occurrence or are inregard to incidents which are two or more parts of the same transaction.CIf the answer to the question is affirmative, then the second FIR neednot be proceeded with.

82. In Arnab Ranjan Goswami’s case, the proceedings in thesubsequent FIRs were quashed as the counsel for the complainants inthe said case had joined the petitioner in making the said prayer. However,Din the present case, we would like to follow the ratio in T.T. Antonywhich is to the effect that the subsequent FIRs would be treated asstatements under Section 162 of the Criminal Code. This is clear fromthe following dictum in T.T. Antony:

“18. An information given under sub-section (1) of SectionE154 CrPC is commonly known as first information report (FIR)though this term is not used in the Code. It is very importantdocument. And as its nickname suggests it is the earliest andthe first information of cognizable offence recorded by anofficer in charge of police station. It sets the criminal law inFmotion and marks the commencement of the investigation whichends up with the formation of opinion under Section 169 or 170CrPC, as the case may be, and forwarding of police reportunder Section 173 CrPC. It is quite possible and it happens notinfrequently that more informations than one are given to apolice officer in charge of police station in respect of theGsame incident involving one or more than one cognizableoffences. In such case he need not enter every one of themin the station house diary and this is implied in Section 154CrPC. Apart from vague information by phone call or

cryptic telegram, the information first entered in the stationhouse diary, kept for this purpose, by police officer in chargeof police station is the first information report — FIRpostulated by Section 154 CrPC. All other informations madeorally or in writing after the commencement of the investigationinto the cognizable offence disclosed from the facts mentionedin the first information report and entered in the station housediary by the police officer or such other cognizable offencesas may come to his notice during the investigation, will bestatements falling under Section 162 CrPC. No suchinformation/ statement can properly be treated as an FIR andentered in the station house diary again, as it would in effectbe second FIR and the same cannot be in conformity withthe scheme of CrPC. Take case where an FIR mentionscognizable offence under Section 307 or 326 IPC and theinvestigating agency learns during the investigation or receivesfresh information that the victim died, no fresh FIR underSection 302 IPC need be registered which will be irregular; insuch case alteration of the provision of law in the first FIR isthe proper course to adopt. Let us consider different situationin which having killed W, his wife, informs the police thatshe is killed by an unknown person or knowing that W is killedby his mother or sister, owns up the responsibility and duringinvestigation the truth is detected; it does not require filing offresh FIR against — the real offender — who can bearraigned in the report under Section 173(2) or 173(8) CrPC,as the case may be. It is of course permissible for theinvestigating officer to send up report to the Magistrateconcerned even earlier that investigation is being directedagainst the person suspected to be the accused.”83. This would be fair and just to the other complainants at whosebehest the other FIRs were caused to be registered, for they would be ina position to file protest petition in case closure/final report is filed bythe police. Upon filing of such protest petition, the magistrate would beobliged to consider their contention(s), and may even reject the closure/final report and take cognizance of the offence and issue summons tothe accused. Otherwise, such complainants would face difficulty incontesting the closure report before the Magistrate, despite and even ifthere is enough material to make out case of commission of an offence.

A84. Lastly, we would also like to clarify that Section 179 of theCriminal Code permits prosecution of cases in the court within whoselocal jurisdiction the offence has been committed or consequences haveensued. Section 186 of the Criminal Code relates to cases where twoseparate charge-sheets have been filed on the basis of separate FIRsand postulates that the prosecution would proceed where the first charge-Bsheet has been filed on the basis of the FIR that is first in point of time.Principle underlying section 186 can be applied at the pre-charge-sheetstage, that is, post registration of FIR but before charge-sheet is submittedto the Magistrate. In such cases ordinarily the first FIR, that is, the FIRregistered first in point of time, should be treated as the main FIR andCothers as statements under Section 162 of the Criminal Code. However,in exceptional cases and for good reasons, it will be open to the HighCourt or this Court, as the case may be, to treat the subsequently registeredFIR as the principal FIR. However, this should not cause any prejudice,inconvenience or harassment to either the victims, witnesses or the personwho is accused. We have clarified the aforesaid position to avoid anyDdoubt or debate on the said aspect.

85. In view of our findings, we accept the prayer made in the lastamended writ petition and transfer all FIRs listed at serial No. 2 to 7 inparagraph 4 (supra) to police station Dargah, Ajmer, Rajasthan, wherethe first FIR was registered. We do not find any good ground or specialEreason to transfer the FIRs to Noida, Uttar Pradesh. Statement of thecomplaint/informant forming the basis of the transferred FIRs would beconsidered as statement under Section 162 of the Criminal Code and beproceeded with. Compliance of the above directions to transfer paperswould be made by the concerned police station within four weeks whenFthey receive copy of this order. The above directions would equallyapply to any other FIR/complaint predicated on the same telecast/ episode.

E. The third prayer

86. Regarding the third prayer made by the petitioner, followingthe ratio laid down in Arnab Ranjan Goswami we direct the State ofGUttar Pradesh to examine the threat perception for the petitioner and hisfamily members and take appropriate steps as may necessary. Similarassessment be made by the State of Rajasthan and based on the inputsgiven by its agencies steps as may be necessary be taken on usual terms.

Operative directions

87. In view of the aforesaid discussion, we decline and reject theprayer of the petitioner for quashing of the FIRs but have granted interimprotection to the petitioner against arrest subject to his joining andcooperating in investigation till completion of the investigation in termsof our directions in paragraphs 79 and 85 above. We have howeveraccepted the prayer of the petitioner for transfer of all pending FIRs inrelation to and arising out of the telecast/episode dated 15th June 2020to P.S. Dargah, Ajmer, Rajasthan, where the first FIR was registered.On the third prayer, we have asked the concerned states to examine thethreat perception of the petitioner and family members and takeappropriate steps as may be necessary.

88. The writ petition and all pending applications are, accordingly,disposed of in the aforesaid terms.

Ankit Gyan

Writ Petition disposed of.