The Case of Sheikh Ali Salman [Bahrain]
Closed Mixed Outcome
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The two-judge bench of the Supreme Court of India refused to grant relief in a writ petition to dismiss criminal proceedings against a television journalist, Amish Devgan, who had used derogatory language against a revered Muslim saint. The Court conducted a thorough analysis of the Indian legal framework on hate speech as well as providing an overview of comparative jurisprudence on the issue. Throughout the judgment the Court emphasized the importance of protecting free speech while also protecting group dignity and the unity of the nation by proscribing speech which threatens that dignity and unity. In this preliminary ruling, the Court refused to quash any of the seven first information reports against Devgan, but agreed they could be combined and heard together. Devgan was granted interim protection against arrest on the ground that he cooperate with the ongoing investigation into the perceived threats.
On June 15, 2020, Amish Devgan, a television journalist, hosted a show which debated the Places of Worship (Special Provisions) Act, 1991. The Act – which “prohibits conversion and provides for maintenance of the religious character of places of worship as it existed on 15th August, 1947” – had been challenged by Hindu priests organizations and a Muslim organization was opposing the challenge. [para. 3]. During the televised debate, Devgan had described revered Muslim Sufi saint, Pir Hazrat Moinuddin Chishti, as a terrorist intruder who had “by fear and intimidation coerced Hindus to embrace Islam” [para. 4]. After the debate, Devgan was accused of having “deliberately and intentionally insulted a Pir or a pious saint belonging to the Muslim community, revered even by Hindus, and thereby hurt and incited religious hatred towards Muslims” [para. 4]. Devgan received death threats over social media and a number of First Information Reports (FIRs) – information given to a police officer about a criminal offence – against Devgan were registered in various police stations under various state jurisdictions in the country. These FIRs were registered under sections 295A (Deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs), 153A (Promoting enmity between different [religious] groups..and doing acts prejudicial to maintenance of harmony), 505 ( Statements conducing to mischief) and 34 (Acts done by several persons in furtherance of common intention) of the Indian Penal Code, 1860.
On June 17, 2020, Devgan tweeted an apology video, noting that he had mistakenly referred to Pir Hazrat Moinuddin Chishti when he meant to refer to Alauddin Khilji. The apology was also aired on the television channel which had hosted the initial debate.
On June 22, 2020, Devgan approached the Supreme Court in a writ petition to seek dismissal of these FIRS as an extraordinary judicial relief under the scope of section 482 of the Criminal Procedure Code, 1973. This section empowers a Court to make any order “to prevent an abuse of the process of any Court or otherwise to secure the ends of justice”. It has been used to quash proceedings arising out of FIRs in other cases. The States of Maharashtra, Rajasthan, Telangana and Uttar Pradesh and a number of private respondents opposed Devgan’s application.
Justice Sanjiv Khanna wrote the judgment on the behalf of Justice AM Khanwilkar and himself.
Devgan argued that the criminal proceedings filed against him were designed to “harass and intimidate” him and that it was an abuse of law to file multiple criminal cases out of the same incident [para. 8]. He also submitted that there was no offence committed under the Penal Code or the Information Technology Act as he had no intention to “outrage religious beliefs and feelings” and that his words were merely careless, which does not fall within the ambit of the offences in section 153A, 295A, and 505(2) of the Penal Code. In the alternative, Devgan submitted that the only offence was one of “trifle or minor” harm, under section 95 of the Penal Code, or that all offences should be joined together and heard as one.
The Respondents argued that Devgan was a “habitual offender” as he had made the same statements about the Pir in the past and had offered similar apologies [para. 9]. They submitted that it was not possible that Devgan had made a mistake because he had mentioned “Chishti” three times, the discussion at the pertinent time was about Chishti and that the recording of the debate that was uploaded on YouTube had been edited to remove the references to Chishti. The respondents maintained that Devgan’s apology was not genuine as it was only issued after the FIRs were filed. They also argued that the purpose of the televised debate was to “malign the Muslims and to promote hatred” [para. 10]. The Respondents argued that article 19 of the Indian Constitution (which protects the right to freedom of expression) “is subject to express limitations” under subsection (2), and that section 19 of the Cable TV (Regulation) Act prohibits the “broadcast [of] any content that promotes hate or ill will” [para. 10].
The Court provided a thorough analysis of the nature of hate speech offences around the world and of the Indian legislative and constitutional framework around the right to freedom of expression and its permissible limitations. It noted that “it remains difficult in law to draw the outmost bounds of freedom of speech and expression beyond which the right would fall foul” and highlighted that there are considerations of “democratic values and public law” which makes it difficult to determine when it is both reasonable and proportional to criminalize speech [para. 15]. With reference to the case of Pravasi Bhalai Sangathan v. Union of India (2014) 11 SCC 477 the Court noted that it had requested the Law Commission of India to research and make recommendations to Parliament on creating new hate speech law but that the government had not yet accepted the Commission’s recommendations. The Court referred to the Law Commission’s Report in detail, noting that the Report covered the international standards addressing hate speech, including article 20(2) of the ICCPR, articles 4 and 5 of the International Convention on the Elimination of All Forms of Racial Discrimination, article 10 of the European Convention of Human Rights, and the UN Special Rapporteur report on internet content. The Court noted that the European Court of Human Rights has held that “speech propagating religious intolerance, negationism, homophobia etc. has been excluded from the ambit” of protection of free speech [para. 17].
In its analysis of comparative jurisprudence, the Court looked at the approach to hate speech in the United States, Canada, Australia, South Africa, the United Kingdom, Germany and France. It characterized the American position as disclosing “a strong preference for liberty over equality, and commitment to individualism”, and noted that the purpose of the protection of free speech, was to protect people against government, to protect those with differing views, and to protect marginalized voices [para. 18]. With reference to R v. Keegstra (1990) 3 SCR 697, the Court commented that Canadian courts proceed “on the basis of inviolability of human dignity as its paramount value” and promote “multiculturalism and group equality” [para. 22]. Here, with reference to Canada (Human Rights Commission) v. Taylor (1990) 3 SCR 892, the Court also noted that the Canadian approach “considers the likely impact of hate speech on both the targeted groups and non-targeted groups” as the targeted group would feel degraded and the non-targeted group would become desensitized towards the hate speech [para. 22]. The Court described Australian jurisprudence as being “substantially aligned with that in Canada” [para. 24] and recognized that South Africa also places dignity at the centre of a hate speech analysis. In relation to the UK, the Court referred to the Race Relations Act of 1965 which criminalized incitement to hatred and the “illegal promotion of hate speech on basis of race, colour or national origin” [para. 26]. The Court commented that in Germany, freedom of expression can be limited by “equality, dignity and multiculturalism” and that the “German application strikes a balance between rights and duties, between the individual and the community and between the self-expression needs of the speaker and the self-respect and dignity of the listeners” [para. 27]. In France, conversely, the Court noted the country’s history of revolution and stated that “the French recognise and accept the right to offend as an essential corollary to freedom of expression which should be defended or upheld by other means than by causing offence” [para. 28].
The Court also quoted Andrew Sellars’s essay Defining Hate Speech in detail and discussed an article on online harassment by Alice E. Marwick and Ross Miller which identified three ways in which hate speech can be defined: “content-based element, intent-based element and harm-based element” [para. 48]. It stressed that the test for hate speech has to be objective, based on the reasonable man standard, but that the context – namely the speaker and the audience – must be considered alongside the subjective enquiry into whether the speaker spoke with good faith.
The Court conducted a review of Indian jurisprudence on the constitutionality of laws criminalizing insulting religious beliefs and threats to public order as well as the need to balance conflicting constitutional rights. With reference to the case of Ramji Lal Modi v. State of U.P. AIR 1957 SC 620 the Court highlighted that intention to insult must be present and mentioned Shreya Singhal v. Union of India (2015) 5 SCC 1 in noting that any restrictions to speech must be reasonable and proportional. With reference to the Rustom Cowasjee Cooper v. Union of India (1970) 2 SCC 298 and Maneka Gandhi v. Union of India (1978) 1 SCC 248 cases, the Court stressed that the rights to liberty, equality, expression, religion, and the cultural and educational rights are interrelated, and that although the right to freedom of expression “is absolutely sacrosanct in the sense that it is essential for individual growth and progress of democracy”, the rights to equality and dignity are significant as well [para. 43]. The Court repeatedly stressed the importance of the rights to equality and dignity in the constitutional framework, and defined dignity in terms of hate speech as “a person’s basic entitlement as a member of a society in good standing, his status as a social equal and as bearer of human rights and constitutional entitlements” [para. 46]. It added, with reference to the US case of Beauharnais v. Illinois 343 U.S. 250 (1952), that dignity here relates not to individual dignity but group dignity as “disharmony amongst groups, erodes tolerance and open-mindedness which are a must for multi-cultural society committed to the idea of equality” [para. 46]. The Court noted that the preamble to the Constitution links dignity of individuals and groups and added that the Constitution does not seek to curtail freedom of expression but to protect against the weakening of unity. It stated that “[f]reedom and rights cannot extend to create public disorder or armour those who challenge integrity and unity of the country or promote and incite violence” [para. 47].
The Court distinguished between free speech – which it characterized as including the right to criticize government policies – and hate speech, which is “creating or spreading hatred against a targeted community or group”, and stated that the purpose of criminalizing hate speech is to protect dignity and to “ensure political and social equality between different identities and groups” [para. 54].
The Court spent considerable time discussing the role of free speech in democracy and stated that “[f]reedom to express and speak is the most important condition for political democracy” and stressed the importance of being able to challenge government policy and elected officials [para. 54]. It added that making a false statement about government policies would never constitute hate speech, and that, here, the limit is only when speech threatens public order. The Court did note there may be a difficulty in determining whether speech is “political or policy comment” or if it “creates or spreads hatred against the targeted group or community” [para. 55]. It commented that the distinction is that what would be hate speech is “hate which tends to vilify, humiliate and incite hatred or violence against the target group based upon identity of the group beyond and besides the subject matter” [para. 55]. It also stressed, with reference to K.A. Abbas v. Union of India (1970) 2 SCC 780, Ebrahim Sulaiman Sait v. M.C. Mohammed (1980) 1 SCC 398 and Lalai Singh Yadav v. Uttar Pradesh 1971 Cri LJ 1773 (FB), that the intention and purpose of the speaker is paramount, which prevents silencing genuine discussion on sensitive issues.
The Court then analyzed the legislative provisions under which the FIRs had been filed against Devgan. Section 153A, first enacted in 1898, makes it an offence to promote “enmity between different groups on grounds of religion, race, place of birth, residence, language etc. and doing acts prejudicial to the maintenance of harmony”. In respect of the requirement that there be intention to promote enmity, the Court recognized that the main source is the words themselves, but that courts can have reference to other evidence. In addition, Gopal Vinayak Godse v. Union of India AIR 1971 Bom 56 had found that courts can hold that “the language of the writing is of the nature calculated to promote feelings of enmity or hatred” as a speaker can be “presumed to intend the natural consequences of his act” [para. 62]. The Court agreed with the findings in P.K. P.K. Chakravarty v. The King AIR 1926 Calcutta 1133 and Devi Sharan Sharma v. Emperor AIR 1927 Lah 594 that “[t]he ordinary reasonable meaning of the matter complained of may be either the literal meaning of the published matter or what is implied in that matter or what is inferred from it” [para. 62].
Sections 295A and 505(2) address “deliberate and malicious acts intended to outrage religious feelings of any class by insulting its religion or religious beliefs” and “statements conducing to public mischief”. The Court emphasized that these offences require intent – “deliberate and malicious intent … to outrage religious feeling” – and harm – that the statements must create, be likely to create or promote enmity or hatred [para. 65], and discussed the difference between “promotes”, “likely”, “create or promote” and “attempts” [para. 67-68]. The Court stated that for these hate speech offences there have to have been words uttered – mere thought is not enough – and that there must be intent and proximate nexus to harm. The Court concluded its comparative and legislative analysis by stating that it had to “condemn and check any attempt at dissemination of discrimination on the basis of race, religion, caste, creed or regional basis” and “act with the objective for promoting social harmony and tolerance by proscribing hateful and inappropriate behaviour” [para. 69].
In assessing the facts of the present case, the Court dismissed Devgan’s argument that criminal proceedings could only be filed in the jurisdiction where the debate was filmed and noted that the debate was “broadcast on a widely viewed television network” and that the viewers – located throughout India – were affected by Devgan’s statements [para. 13]. The Court also rejected Devgan’s defence that his conduct merely constituted a trivial offence, noting that the evidence on the nature of his conduct would have to be collected and considered by law enforcement authorities and that the Court was not in a position to determine the triviality of the offence, at this stage.
The Court then applied the tests of content, context, intent and harm to determine whether an offence had been made out. In respect of the content of Devgan’s statements, it found that there was no doubt about what Devgan had said (as the Court had the full, accurate transcript of the debate), and that Devgan was a co-participant in the debate (rather than just a host). The Court noted that the Respondents had submitted that Devgan’s apology was “an indication or implied acceptance of his acts of commission” [para. 78]. The Court stated that following its “careful and in-depth consideration” it would not dismiss the FIRs and would leave it to the authorities to apply their minds to the matters. It stressed that the court can only act at this stage of criminal proceedings to “prevent abuse of process or otherwise to secure ends of justice” [para. 80]. It also applied the jurisprudential standards for the granting of the extraordinary remedy under section 482 of Criminal Procedure Code, 1973 which protect the accused in situations where criminal proceedings are entirely misconceived or where the offence isn’t made out even if the allegations are accepted at face value. On the application of these “strict and restricted” requirements for the granting of this relief, the Court found that they “were not satisfied in the present case” [para. 80].
The Court also held that all the separate complaints should be treated as statements but that they would be combined and heard together at the place the first complaint was lodged.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The Court provided a helpful overview of the constitutional and legislative framework of hate speech in India, as well as of comparative jurisprudence. However, due to presence on conflicting precedents and the pre-trial nature of this adjudication, the law on investigation of hate speech and its proportionate legal penalty in view of the provision for free expression, needs greater clarity. Nevertheless, by actively choosing to not interfere in a valid criminal investigation in a case where the offence of hate speech was prima facie established, the Court is signaling that India, as a jurisdiction believing in rule of law, does not pardon or grant impunity to people who infringe the group dignity of a minority community.
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