Dalban v. Romania
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The High Court of Andhra Pradesh quashed a criminal complaint against a journalist for publishing a false statement on the grounds that the filing of the complaint was an abuse of process of law. The State of Andhra Pradesh had made a complaint that the journalist had published a statement in an audio clip which was likely to create feelings of hatred between different groups, was a false alarm, constituted criminal intimidation and amounted to disobeying a public servant’s order. After the police filed the complaint, the journalist approached the Court seeking a declaration that the complaint was illegal and violated his rights to equality, freedom of expression and life and personal liberty. The Court dismissed all the charges, finding that there was no evidence to sustain the complaints. It characterized the police action as “overenthusiasm … to please the political party in power” and held that the registration of the offence was illegal and an infringement of the journalist’s rights [p. 39].
On April 4, 2020, the State of Andhra Pradesh in India lodged a complaint against Ravishanka Kantamaneni, the Managing Director of “Object One Information Systems Limited”. The State alleged that a false and fabricated audio clip appeared on the YouTube channel of Telugu One – a digital media division under Object One. Telugu One disseminates information on Telugu language, culture, traditions, literature and entertainment, and news across the world and has been operating since 1999 with 10 million viewers and branches across India as well as in the US. The audio clip which led to the complaint contained the telephonic conversation between the Chief Minister of Andhra Pradesh and a senior Indian Administration Service officer, and the State alleged that this was posted for the purpose of causing “annoyance, inconvenience, anger, insult, injury, criminal intimidation, hatred, ill will against the government and the [Chief Minister of Andhra Pradesh] creating panic in the minds of the people of Andhra Pradesh that the State is unsafe during the pandemic” [p. 24]. The State claimed that the clip was circulated on WhatsApp, Twitter, Facebook, TikTok, YouTube and Helo to “mislead the public and to make them nurse ill will hatred against Shri Y.S. Jagan Mohan Reddy [the Chief Minister], his family, [the Andhra Pradesh] Government and [Yuvajana Sramika Rythu] Congress Party” [p. 24].
The complaint was registered under sections 188, 505(2), and 506 of the Indian Penal Code, 1860 (IPC) and section 54 of the Disaster Management Act, 2005 (DMA). Section 188 deals with disobedience caused to an order promulgated by a public servant, which is punishable by imprisonment of one month or a fine. Section 505 criminalizes “making, publishing or circulating any statement or report containing rumor or alarming news with intent to create or promote, or which is likely to create or promote, on grounds of religion, race, place of birth, residence, language, caste or community or any other ground whatsoever feelings of enmity, hatred or ill-will between different religious, racial, language or regional groups or castes or communities”. Section 506 makes criminal intimidation an offence. Section 56 of the DMA states that “[w]hoever makes or circulates a false alarm or warning as to disaster or its severity or magnitude, leading to panic, shall on conviction, be punishable with imprisonment which may extend to one year or with fine”.
Kantamaneni filed a writ petition under article 226 of the Indian Constitution to declare the State’s action of registering the complaint as illegal, arbitrary, and an abuse of process of law, and that it violated his fundamental rights guaranteed under article 14, 19(1)(a) and 21 of the Constitution.
Article 14 guarantees the right to equality, and states “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India”. Article 19(1)(a) protects the right to freedom of speech and expression. Article 21 states “No person shall be deprived of his life or personal liberty except according to procedure established by law”.
Justice M. Satyanarayana Murthy delivered the judgment of the High Court of Andhra Pradesh. The central issue before the Court was whether the allegations made in the complaint constituted offences, or whether the filing of the complaint was an abuse of process of law.
Kantamaneni argued that the filing of the complaint was “illegal, arbitrary, abuse of process of law and in violation of” articles 14, 19(1)(a) and 21 of the Constitution [p. 4]. He argued that the complaint did not disclose any offence – either under sections 188, 505(2) and 506 of the IPC or section 54 of the DMA or any other law. Kantamaneni submitted that section 188 requires the disobedience of an order promulgated by a public servant and that there was no order in the present case which he disobeyed. He also submitted that the audio clip which led to the complaint was “an opinion expressed by one person to another person relating to functioning of office of Hon’ble Chief Minister” and so did not constitute the circulation of a statement of alarming news with the intent to create feelings of enmity, hatred or ill-will – as is required for section 505(2) of the IPC. Kantamaneni submitted that the “ingredients to constitute an offence of ‘criminal intimidation’” under 506 of the IPC were not present, and there was no “false warning as to disaster” to found an offence under section 54 of the DMA. Kantamaneni maintained that the First Information Report (FIR) filed by the State did “not constitute an offence punishable” under the relevant legislative provisions [p. 11].
The State argued that Kantamaneni was responsible for the circulation of “misinformation and disinformation with a criminal intent to instigate the people and develop discontent against the government during the Covid-19 period” [p. 9]. It submitted that the broadcast of the clip was done with “the intention to cause annoyance, inconvenience, danger, insult, injury, criminal intimidation, hatred, ill-will against the government and the holders of the high office” [p. 10]. The State highlighted that the Government of India had issued an “advisory for curbing false news/misinformation on Corona Virus” [p. 9].
The Court discussed foreign comparative jurisprudence on an abuse of due process and noted that a Court is permitted to interfere with criminal proceedings when there is a “failure to act in all fairness against the accused or registration of crime based on bogus complaint or the allegations in complaint do not constitute the offence, registration of crime would constitute abuse of process of law” [p. 18]. The Court assessed whether the complaint filed in the present case did constitute an abuse of process or whether the allegations did justify the filing of the relevant offences.
The Court examined whether there was sufficient evidence to found a complaint under section 505, and analysed jurisprudence in setting out the elements of the offence. With reference to the case of Bilal Ahmed Kaloo v. State of Andhra Pradesh 1997 (2) SCC 431, the Court commented that the key element of this offence is the publication or circulation of a statement containing rumour or alarming news, but that – similar to the offences in section 153A of IPC – the promoting of enmity, hatred or ill will between communities is fundamental to the offence. The Court noted that the case of Manzar Sayeed v. State of Maharashtra 2007 (5) SCC 1 had stipulated that “the effect of words should be judged from the standards of reasonable, strong-minded and courageous men” and added that the Supreme Court case of Balwant Singh v. State of Punjab confirmed that there must be mens rea present in the form of intent to promote hatred [p. 28]. In Vishal Dadlani v. State of Haryana 2019 Cri L J 3784 that Court had explained that there had to be two separate groups involved as “merely inciting the felling of one community or group without any reference to any other community or group cannot attract either [sections 153A or 505]” [p. 29]. The Court also mentioned the importance of protecting the right to freedom of expression and referred to the case of K.Divya v. The State 2020 (2) MLJ (Crl) 247.
The Court held that as there were not two groups in this case “the question of commission of offence punishable under section 505(2) of I.P.C does not arise” [p. 26] and that the registration of the crime against Kantamaneni was “illegal” [p. 31]. The Court stressed that the complaint alleged that the audio clip intended to insult the government and the Chief Minister which cannot constitute a “group” for the meaning of section 505. It held that the State had registered the crime as an abuse of process of law [para. 32].
The Court then analysed the offence under section 506. It set out the main elements of the crime of criminal intimidation: 1) threatening injury to a person, a reputation, a property, or to the person or reputation of anyone in whom a person is interested,; 2) intending to cause alarm to a person or to compel them to do something they are not bound to do or omit to do something they are entitled to do: and 3) forcing the commission of these acts as “a means to avoid execution of such threat” [p. 33]. The Court referred to the cases of Vikram Johar v. State of Uttar Pradesh AIR 2019 SC 2109, Shri Padma Mohan Jamatia v. Smt. Jharna Das Baidya 2019 CriLJ 2270 and to the Supreme Court case of Manik Taneja v. State of Karnataka (2015) 7 SCC 423 in noting that the use of “filthy language” and posting comments about ill-treatment by police on Facebook does not constitute criminal intimidation [p. 33]. The Court referred the Manik Taneja case and stated that “[m]ere expression of any words without any intention to cause alarm would not be sufficient to bring in the application of this section” [p. 35].
Applying these principles to the present case the Court held that “there was absolutely no threat to the public or causing alarm in the mind of any person to do or omit to do any work” and that “[a]t best, the allegations in the complaint would disclose that the statement in the social platform may create or likely to create panic in the minds of the public that the entry into the State of Andhra Pradesh is not safe during Covid- 19 period” [p. 35]. Accordingly, the Court held that the allegations in the complaint did not constitute an offence and the registration of the complaint constituted an abuse of process, and so quashed the proceedings.
The Court also dismissed the charges under section 188 and 195 because there was simply no order promulgated by a public servant – as required by section 188 – and the complaint had not been laid by a public servant – which is a prerequisite for section 195.
In analysing whether the charge under section 54 of the DMA could be sustained, the Court referred to section 60 of that Act which – similar to section 195 of the IPC – requires that all complaints made under the Act must be registered by a government official or authority. Accordingly, as this had not happened in the present case, the Court quashed this complaint.
The Court noted that the action of the police in registering the complaints made against Kantamaneni and seizing his electronic equipment “is nothing but exhibiting overenthusiasm … to please the political party in power” and characterized the actions as abuse of process of law, damaging Kantamaneni rights to freedom of expression and life or personal liberty [p. 39].
Accordingly, the Court held that the registration of offences was illegal and arbitrary and violated articles 14, 19(1)(a) and 21 of the Constitution.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
By quashing the complaint on the grounds that the elements of the offence were not present and refusing to apply the legislative framework of false news and spreading enmity to silence a journalist who opposed the political party in power, the Court ensured the law could not be used as a tool against political dissenters.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
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