Penal Code, 1860 – ss.153A and 505(1)(c) – Brutal attack on non-tribals in State of Meghalaya with iron rods and sticks – Attackers allegedly belonged to tribal community of Meghalaya – Facebook post uploaded by Appellant, alleged to be intentionally made for promoting class / community hatred between tribals and non-tribals in the State – Prima facie case made out u/ss.153A and 505(1)(c) or not – Held: Close scrutiny of the Facebook post uploaded by appellant indicate that her agony was directed against the apathy shown by the CM, Meghalaya, DGP and the DorbarShnong of the area in not taking any action against the culprits who attacked the non-tribals – The Facebook post read in its entirety pleads for equality of non-tribals in the State of Meghalaya – There was no intention on the part of the Appellant to promote class / community hatred – As no attempt was made by the Appellant to incite people belonging to a community to indulge in any violence, the basic ingredients of offence u/ss.153A and 505(1)(c) not made out – Fervent plea made by Appellant for protection of non-tribals living in the State of Meghalaya and for their equality cannot, by any stretch of imagination, be categorized as hate speech – It was a call for justice - for action according to law, which every citizen has a right to expect and articulate – Disapprobation of governmental inaction cannot be branded as an attempt to promote hatred between different communities – Free speech of the citizens cannot be stifled by implicating them in criminal cases, unless such speech has the tendency to affect public order – No case made out against Appellant for offences u/ss.153A and 505(1)(c).
Penal Code, 1860 – s.153A – Speech crime – Restrictions on freedom of speech and expression – Held: Freedom of speech and expression guaranteed by Art.19(1)(a) of the Constitution is a very valuable fundamental right – However, the right is not absolute – Reasonable restrictions can be placed on the right of free speech and expression in the interest of sovereignty and integrity of India, security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of Court, defamation or incitement to an offence – Speech crime is punishable u/s.153A – Constitution of India, 1950 – Art.19(1)(a) – Hate Speech. Penal Code, 1860 – s.153A – Ambit of – Explained – Held: The intention to cause disorder or incite people to violence is sine qua non of the offence u/s. 153A and the prosecution has to prove the existence of mens rea in order to succeed – Intention has to be judged primarily by the language of the piece of writing and the circumstances in which it was written and published – However, the matter complained of within the ambit of s.153A must be read as a whole.
Penal Code, 1860 – ss.153A & 505 – Ingredients of s.153A vis-a-vis that of s.505(2) – Similarities and difference between the two offences – Held: Mens rea is a necessary ingredient for offence u/s.153A and s.505(2) – Common factor of both the sections being promotion of feelings of enmity, hatred or ill will between different religious or racial or linguistics or religious groups or castes or communities, it is necessary that at least two such groups or communities should be involved – Merely inciting the feelings of one community or group without any reference to any other community or group cannot attract any of the two sections – However, publication of words or representation is sine qua non u/s.505 – Hate Speech.
FIR – Quashing of – Held: Where allegations made in the FIR or the complaint, even if they are taken on their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused, the FIR is liable to be quashed.
Allowing the appeal, the Court
HELD : 1.1. Freedom of speech and expression guaranteed by Article 19(1)(a) of the Constitution is a very valuable fundamental right. However, the right is not absolute. Reasonable restrictions can be placed on the right of free speech and expression in the interest of sovereignty and integrity of India, security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of Court, defamation or incitement to an offence. Speech crime is punishable under s.153A IPC. [Para 8][72-C-D]
1.2. However, the intention to cause disorder or incite people to violence is the sine qua non of the offence under s. 153A IPC and the prosecution has to prove the existence of mens rea in order to succeed. The gist of the offence under s. 153A IPC is the intention to promote feelings of enmity or hatred between different classes of people. Intention has to be judged primarily by the language of the piece of writing and the circumstances in which it was written and published. The matter complained of within the ambit of s.153A must be read as a whole. One cannot rely on strongly worded and isolated passages for proving the charge nor indeed can one take a sentence here and a sentence there and connect them by a meticulous process of inferential reasoning. [Paras 9, 10][73-H; 74-A-C]
1.3. Mens rea has been held to be a necessary ingredient for the offence under s.153A and s.505(2) IPC. The common factor of both the sections being promotion of feelings of enmity, hatred or ill will between different religious or racial or linguistics or religious groups or castes or communities, it is necessary that at least two such groups or communities should be involved. Merely inciting the feelings of one community or group without any reference to any other community or group cannot attract any of the two sections. However, publication of words or representation is sine qua non under Section 505. [Para 11][74-D-F]
2. A close scrutiny of the Facebook post uploaded by the Appellant would indicate that the agony of the Appellant was directed against the apathy shown by the CM, Meghalaya, DGP and the DorbarShnong of the area in not taking any action against the culprits who attacked the non-tribals. At the most, the Facebook post can be understood to highlight the discrimination against nontribals in the State of Meghalaya. The Appellant made it clear that criminal elements have no community and immediate action has to be taken against persons who had indulged in the brutal attack on non-tribal youngsters playing basketball. The Facebook post read in its entirety pleads for equality of non-tribals in the State of Meghalaya. There was no intention on the part of the Appellant to promote class / community hatred. As there is no attempt made by the Appellant to incite people belonging to a community to indulge in any violence, the basic ingredients of the offence under Sections 153A and 505(1)(c) IPC have not been made out. Where allegations made in the FIR or the complaint, even if they are taken on their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused, the FIR is liable to be quashed. [Para 13][75-E-H; 76-A-B]
3. The complaint made by the Dorbar Shnong, Lawsohtun that the statement of the Appellant would incite communal tension and might instigate a communal conflict in the entire State is only a figment of imagination. The fervent plea made by the Appellant for protection of non-tribals living in the State of Meghalaya and for their equality cannot, by any stretch of imagination, be categorized as hate speech. It was a call for justice - for action according to law, which every citizen has a right to expect and articulate. Disapprobation of governmental inaction cannot be branded as an attempt to promote hatred between different communities. Free speech of the citizens of this country cannot be stifled by implicating them in criminal cases, unless such speech has the tendency to affect public order. No case is made out against the Appellant for an offence under Section 153 A and 505(1)(c) IPC. [Para 15][76-E-H; 77-A] Balwant Singh v. State of Punjab, (1995) 3 SCC 214; Manzar Sayeed Khan v. State of Maharashtra, (2007) 5 SCC 1; Bilal Ahmed Kaloo v. State of A.P.(1997) 7 SCC 431: [1997] 3 Suppl. SCR 327 and State of Haryana & Ors. v. Bhajan Lal & Ors., 1992 Supp (1) SCC 335: [1990]
3 Suppl. SCR 259 – relied on.
Ramesh v. Union of India (1988) 1 SCC 668: [1988] 2 SCR 1011; and Pravasi Bhalai Sangathan v. Union of India & Ors. (2014) 11 SCC 477: [2014] 4 SCR 446 –
referred to.
Saskatchewan (Human Rights Commission) v. Whatcott [2013] 1 SCR 467 (Decision of Canadian Supreme Court) – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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