The Pernicious Tendency of Intolerance: Case Analysis on Amish Devgan v. Union of India

Pushkin Tandon

Associate Editor, Legal WIND

Date of Judgment: December 07, 2020

Bench: Honorable Justice Sanjiv Khanna and Honorable Justice A.M. Khanwilkar

Court: Supreme Court of India

Citation: [(2020) SCC Online SC 994]

Introduction:

The Constitution of India enshrines liberties and privileges on the pedestal of advancement and preservation of society. Reasonable restrictions bind every right and freedom available to citizens. These restrictions are safeguards against acts that tend to cause damage and harm to the feelings and safety of the citizenry. Freedom of press comes under Article 19(1) (a), which enables the propagation of an idea.[1] India's law commission suggests restrictions on the grounds of sedition, obscenity, defamation, and public order interest. These restrictions are supposed to be determined based on the content, context, and extent of abuse caused by speech. They are maintained to ensure that marginalized and weaker sections of the society are not demonized to the extent that they lose their status of equality with the majority.

The Supreme Court tries to define hate speech through international agreements such as Article 20(2) of the International Covenant on Civil and Political Rights, 1966; Articles 4 and 6 of the International Convention on the Elimination of All Forms of Racial Discrimination, 1966 (CERD); Article 10 of the European Convention of Human Rights. These definitions lay down the criminalization of propagating xenophobia, religious intolerance, and hatred, anything that degrades any identity's protection and dignity on cultural, religious, racial, and sexual grounds.

While determining the contours of public duty and the proportionality of an act, the Court faces a challenge defining reasonable restriction, especially in a constantly evolving society. The collective mental state of society comprised of past and present experiences play a significant role in shaping and labelling criminality on speech. Therefore, constitutional and statutory treatment of 'hate speech' relies on the citizenry's morality and the values it seeks to promote. The prevailing conditions determine the morality of a society that dictates a nation's laws.

Background and Facts:

The Managing editor of News18 India, Amish Devgan, disparaged the Sufi saint Pir Hazrat Moinuddin Chishti while anchoring his Primetime news show . While debating the Places of Worship (Special Provisions) Act, which talks about religious conversion and the preservation of the religious character of shrines as they existed at the time of independence, the dialogue went astray. He called the multi-culturally revered saint a plunderer and a terrorist. He insinuates a mass religious conversion of Hindus to Islam purported by the holy saint. He was then threatened and intimidated through phone calls and social media by people across the nation. The actions were believed to be deliberate attempts to debase the Islamic community and incite hatred towards them.

The news anchor claimed careless error as he mistakenly named the Sufi saint instead of Alauddin Khilji. The debate' Aar Par' was aired on June 15 2020; on June 17 2020, an apology video was posted on social media and aired on the same television network.

Multiple FIRs were filed against the petitioner in the present case across various state jurisdictions under sections 295A, 153A, 505(2), and 34 of the IPC.

The charges were of

(i) deliberately outraging the religious feelings of any community and insulting their beliefs [Section 295A],

(ii) Disruption of harmony and promotion of enmity between religious groups [Section153A]

(iii) Publishing statements which conduce public mischief [Section 505(2)]

(iv) committing acts performed by several persons in furtherance of a common intention [Section 34].

On June 22, 2020, the petitioner filed a writ to seek quashing of FIRs, or in its alternative, the transfer and clubbing of cases with the first FIR filed at Ajmer and to restrict any further complaints telecast. He further sought the protection of his family members and colleagues due to various death threats. The respondents contended that the accused intentionally made such statements as there was no context of Mughals or Allaudin Khilji during the debate. The apology furnished by the petitioner is not genuine, spoken in self-defence as a panelist on the debate reminded him of the piousness of the Sufi saint. The debate was a dramatized television show with no factual analysis and was published to malign Muslims and to spread hatred against them.

Issues Raised:

1. While determining Mens Rea, the content and language must be judged from the standard of a sane, reasonable, and strong-minded person. Whether the speech made was due to malicious intention or callousness of the speaker?

2. The Constitutional and statutory validity of 'Hate Speech'. Is it a reasonable restriction under Article 19(2)?

3. Whether acts or words likely to promote alienation amongst members of different communities that undermine the nation's unity and integrity are punishable?

4. Whether indifference or neutrality aligns with tolerance and a targeted attack on the dignity of a group of people disrupts unity and promotes public disorder.

Arguments Advanced:

The contentions raised by both the parties are as follows:

Petitioner:

1. The Court should quash multiple FIRs arising on the same action or transferring and clubbing them together.

2. The controversial speech should be taken as a whole and not in utterances or pieces as the complainants do. The context of the speech should not get overlooked.

3. Multiple FIRs were filed to intimidate the petitioner and to harass him.

4. No cause of action arises as the matter is a trifle and the words were a mistake, and the act lacks malicious intention.

Respondent:

1. The petitioner commits a deliberate act done on multiple occasions to incite hatred against the Islamic community.

2. The petition under Article 32 should be dismissed as a remedy under §482 of CrPC available to the petitioner.

3. Allaudin Khilji had no reference on the show and no relation to Pir Chishti; both the personalities were separated by space and time.

4. Anti-social and communal elements used the footage to spread hatred against Muslims in Maharashtra.

5. The speech amounts to hate speech as it demeans a holy religious symbol.

Explanation:

The Court concludes that the freedom of speech and expression is not an absolute right as conferred under the first amendment of the USA after a detailed analysis of various tests and jurisprudence prevalent across the globe. The USA promotes individuality by preferring liberty over curtailment. Thinkers believe that freedom of speech works on the principle of Laissez-Faire and that a free market flow of ideas ensures a state's democratic nature. Further, social contract theory suggests that criticism is a path towards accountability and governments must constantly justify their actions to the citizenry based on the hypothetical contract.

The jurisprudence has evolved from the pernicious tendency to harm public welfare to clear and present danger, which talks about proximity and degree of speech and violence or hatred that follows. The Canadian jurisprudence follows that hate speech perverse the mind of a targeted group through desensitization and undermines and insults the targeted groups, which results in weaker social cohesion. Propaganda erodes the tolerance and open-mindedness required for a multicultural society to survive that promotes and commits to the idea of equality.[2] The position in the UK has shifted from stressing the safety of the state against violence to preventing targets against racial harassment.

There should be a specific intention to insult or vilify the feelings of a community, and this intention must be present.[3] There should be a reasonable and proportional nexus between the freedom and restriction imposed on it.[4] The contents of a message should express hostility against a group that might cause structural changes and intends to demean, vilify, and promote ideological warfare against any set of identities. The harm caused through hate speech is not limited to violence but extends to psychological harm caused by fear or insecurity cultivated in the minds of targeted groups through the propagation of hatred.

The Court reiterates the golden triangle principle where the Court said that freedom of expression is sacrosanct for individual growth and progress of democracy. The rights of equality and dignity should get considered in issues of freedom of speech and expression.[5] Dignity here is defined as entitlement to constitutional rights and equality, specifically the prerogative of respect as a member of a society in good standing. The states should promote social harmony and tolerance by self-restraint, check, and correction through institutions or statutory regulations. Hate speech in the modern and global context of pluralism has nothing to contribute to democracy. It even alters equality for all populations.

The reasonability of restriction is not determined based on the curtailment of freedom but on weakening the unity of a state. The judgment goes on to pronounce that freedoms and rights do not extend to causing public disorder and cannot protect those who challenge the integrity and unity of the country or incite violence. The right and the restriction both exist to maintain political, social, and representational equality, and thus, one justifies the other.

The Court talks about the sedition cases, justifies dissent, and promotes the free flow of ideas with the disruption of public order as the only restriction.[6] In, Superintendent, Central Prison, Fatehgarh, and another v. Dr. Ram Manohar Lohia[7] defines public order as the bare modicum of tranquility required in society to pursue livelihoods and function regularly as its absence leads to curtailment of all other rights enshrined in the constitution. 'Law and Order,' 'Security of the State,' and 'Public Order' are three concentric circles, with state security being the narrowest and Law and Order the widest in scope. Breaches of public order are of local significance, caused by disagreement, annoyance, or unrest, whereas usurpations and rebellions undermine the security of the state.

Verdict:

The Honorable Court rejected the contention to quash FIRs under Secion 179 of the criminal procedure code, which allows filing an FIR at places where the consequence of the act reverberates. When conjoined with Section 156(1), the above provision rids the complaints of jurisdictional defects. The viewer base was in various towns and cities and was affected widely. Further, the complaints were clubbed together on the grounds of Section 186 CrPC and Section162 CrPC, which treats subsequent FIRs as a statement. The matter was transferred and clubbed at Ajmer as they ensued from the same act, and the Court relied upon precedents.[8]

The defense of trifle as under Section 95 of the IPC cited through judgments of Veeda Menez, and Neelam Mahajan were rejected. The Court held that the section safeguards against penalizing negligible wrongs or offenses of a trivial character. The triviality of the act would depend on the knowledge or intention of the accused combined with injury or harm caused while considering evidence collated.

Reasonability cannot be established by creating a causal linkage between the words spoken with the 'clear and present danger' and 'imminent lawless action.' When discussion or advocacy reaches the level of incitement and tends to incite or disrupt public order, Article 19(2) comes into action. The language of a speech determines intention, whether incitement or hatred is present, and the objective of the speech. The consequences of breach of tranquility are a natural consequence of the speech.[9]

This restriction needs to stay balanced because restrictive measures are essential in preserving the integrity, sovereignty, and friendly relations with other states. The purpose of limitation should balance the limitation imposed on a constitutional right.[10] Some of the restrictions on speech and expression are often misused, mainly used to curb dissent and silence the opposition, although it is a necessary restriction as it exists to ensure the safety and security of the populace. Each case has a different factual matrix, and the nexus between speech and harm caused in light of context should be the criteria to impose criminality. The long terms effects of hate speech, when combined with imminent lawless action, degrades the compatibility of cultures. The unity of the nation is to be maintained through reasonable restriction and erudition.

Hate speech is a hindrance to safety and survival. The element of hate speech is not limited to actual violence but extends to the tendency of a speech to incite. This incitement leads a sane-minded person to compromise the sense of security and belonging of a person who does not conform to the most acceptable identity standards in the nation. There should be a reasonable nexus of the speech with such vilification or imminent lawless action. The speech or action should result in a present and clear danger.

Communal Pertinence:

The Law finds contemporary relevance in an era where cyberbullying is widespread in a context where the world is more diverse and connected than ever owing to liberalization and globalization. The Law is pillared on the principles of nature, where action has an equal and opposite reaction. Reasonable restrictions are not only constitutional but also natural. If freedom or liberty is made absolute, it can often mislead ignorant persons and invite severe reactions. Incidents like hate speech, xenophobia, or even humanitarian crises are not an exercise of liberty as they tend to suppress the right of expression of other cultures and end up subjugating them.

The judgment has significant value and ensures the protection of minorities from the desecration of one's ideals and values. In an age of state and corporate-controlled media, information usually loses its neutrality and serves the purposes of an agenda. This agenda exists to mobilize masses for gaining popular political support or fuel fascism behind the smokescreen of nationalism and unity of the majority. Incidents of violence against a minority in India are frequently based on false news spread through social media interfaces. These actions threaten not only Law and Order of a local jurisdiction but affect the public order across the nation.

The concentric circle of Public Order was made evident by the mass protests across the nation against Citizenship Amendment Act and the violence that ensued in Delhi. The genuine incitement, in my opinion, is the generation of fear in the minds of a specific group of population. This fear extends from safety and security of life to the right to protect and gain resources for themselves. After a person's loss of dignity, they tend to take actions or steps to survive after enduring enough subjugation. The solution that comes to mind is stubbing the threat at the source, which may eventually create a vicious cycle of violence. The determination of hate speech is not affected by its veracity but includes resulting consequences.

Conclusion:

The Ratio Decideni of the case establishes procedural law, allowing clubbing cases when an offensive speech is propagated on national television. The FIRs are not quashed as the cause of action arose across regional state boundaries and hurt sentiments of religious communities spread across the country. The erudite honorable judges observed the evolution of crimes against the state to emphasize society's context or collective mindset. Hate speeches tend to cause mental health issues of constant anxiety, paranoia, and fear. It gets perceived considering harm and risk involved with the action and how it corrupts or degrades a particular sect of society. Therefore, the difficulty of coming to a standard definition is omnipresent. The only familiar and agreed-upon element is incitement to violence.

The judgment ends up strengthening the freedom of speech and expression by promoting equality amongst disparity. The judgment upholds the ideals of inclusiveness and ensures nourishment of cultural diversity by identifying and labelling attacks on unity. The objective of hate speech is to demean and create inequality by popularizing hatred against the norms and values of a particular sect. The judgment is valuable as it imposes checks on restrictions to balance the right, liberty, and consequent duty. Tolerance towards indignity and oppression is a violation of Article 21, and intolerance towards different identities and their expression is oppressive and violates the freedom granted to the citizenry of a state. The acts are viewed in the context of society, and the public spirit or mood of society, the morality of society, and its reaction to statements are significant in establishing criminality.

[1] Sakal Papers v. Union of India, AIR 1962 SC 305, Bennett Coleman & Co. Ltd. v. Union of India, AIR 1973 SC 106. [2] Canada (Human Rights Commission) v. Taylor, (1990) 3 SCR 892, Beauharnais v. Illinois 343 U.S. 250 (1952). [3] Ramji Lal Modi v. State of U.P, AIR 1957 SC 620. [4] Shreya Singhal v. Union of India, (2015) 5 SCC 1. [5] Rustom Cowasjee Cooper v. Union of India (1970) 2 SCC 298, Maneka Gandhi v. Union of India (1978) 1 SCC 248. [6] Kedar Nath Singh v. State of Bihar, 1962 AIR 955. [7] AIR 1960 SC 633. [8] Babubhai v. State of Gujarat, (2010) 12 SCC 254; T.T. Antony v. State of Kerala, (2001) 6 SCC 181. [9] Gopal Vinayak Godse v. Union of India AIR 1971 Bom 56, P.K. Chakravarty v. The King AIR 1926 Calcutta 1133 and Devi Sharan Sharma v. Emperor AIR 1927 Lah 594. [10] Modern Dental College and Research Centre and Others v. State of Madhya Pradesh and Others, (2016) 7 SCC 353, Anuradha Bhasin v. Union of India and Others, (2020) 3 SCC 637.