Content Regulation / Censorship, Freedom of Association and Assembly / Protests, Hate Speech, Political Expression
Brandenburg v. Ohio
Closed Expands Expression
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On March 25, 2021, the Supreme Court of India quashed the First Information Report filed under section 153A, section 500 and section 505(1)(c) of the Indian Penal code, 1860 against Patricia Mukhim, a renowned journalist and Padma Shri awardee. The appellant contended that the disputed Facebook post was made without the intention of inciting enmity between the two communities: tribals and non-tribals and promoting communal disharmony. Rather the brutal attack on non-tribals was highlighted in the Facebook post to call for suitable action against the culprits. The judges accepted this contention and ruled that the appellant’s plea calling for the equality and protection of non-tribals living in the State of Meghalaya could not be categorized as hate speech. The judges further reiterated that the disapprobation of governmental inaction could not be branded as an attempt to promote hatred between different communities and that free speech should not be stifled by implicating people in criminal cases, unless such speech has the tendency to affect public order.
Patricia Mukhim (“the appellant”) is an Indian social activist, writer, journalist and the editor of Shillong Times. In 2000, she was honored by the Government of India with the fourth highest Indian civilian award of Padma Shri. The instant appeal was filed to quash the First Information Report (“FIR”) dated July 06, 2020 registered under sections 153 A (promoting enmity between different groups on the basis of religion, race etc), 500 (punishment for defamation) and 505 (1)(c) (statements conducing public mischief) of the Indian Penal Code, 1860 (“IPC”).
On July 04, 2020, the Assistant Inspector General of Police issued a press release stating that 25 unidentified boys had assaulted youngsters playing basketball with iron rods and sticks. It was stated in the press release that some suspects had already been arrested and that an investigation was in progress. A warning was given that nobody should breach communal peace and harmony.
On the same day, the appellant uploaded a post on Facebook, which reads as follows: “Conrad Sangma CM Meghalaya, what happened yesterday at Lawsohtun where some non-tribal youths playing Basketball were assaulted with lethal weapons and are now in hospital, is unacceptable in a state with a Government and a functional Police Force. The attackers were allegedly tribal boys with masks on and should be immediately booked. This continued attack of non-tribals in Meghalaya whose ancestors have lived here for decades, some having come here since the British period is reprehensible to say the least. The fact that such attackers and trouble mongers since 1979 have never been arrested and if arrested never penalized according to law suggests that Meghalaya has been a failed State for a long time now…..Why should our non-tribal brethren continue to live in perpetual fear in their own state? Those born and brought up here have as much right to call Meghalaya their State as the indigenous tribal does.”
On July 06, 2020, the Headman and the Secretary, Dorbar Shnong, Lawsohtun, Shillong filed a complaint with the Superintendent of Police, East Khasi Hills, Shillong, Meghalaya that the statement made by the appellant on Facebook incited communal tension which might instigate a communal conflict. The Dorbar Shnong also complained of defamation.
Acting on the said complaint, a FIR was registered at Laban Police Station and notice was issued to the appellant, directing her to appear. The appellant filed Criminal Petition No. 9 of 2020 in the High Court of Meghalaya at Shillong for quashing the FIR. The High Court by its judgment dated November 10, 2020 dismissed the Criminal Petition No. 9 of 2020, the legality of which was challenged in the instant appeal. The High Court was of the opinion that reference to the attack on the non-tribals in the State of Meghalaya by the tribals had propensity to cause a rift between two communities. Observing that the Facebook post sought to arouse feelings of enmity and hatred between two communities, the High Court held prima facie that an offence under Section 153 A IPC was made out [para. 28-29, HC order].
The case was heard by Justice L. Nageswara Rao and S. Ravindra Bhat of the Supreme Court of India. The central issue for consideration was whether the FIR filed against the appellant deserved to be quashed. To adjudicate this issue, the Court also considered whether the appellant’s Facebook post fell within the ambit of hate speech, written with the intention to promote enmity between the two communities – tribals and non-tribals.
The appellant contended that the ingredients of the offence under section 153A of Indian Penal Code, 1860 were not made out and the FIR deserved to be quashed. It was submitted that the Facebook post should be read in its entirety and that there was no intention to promote any feeling of enmity or hatred between two communities. Reliance was placed on judgments of the Supreme Court to argue that the comment made by the appellant should be judged from the standpoint of a reasonable, strong-minded and courageous man. The appellant asserted her right guaranteed under Article 19 (1) (a) of the Constitution of India. She urged that the criminal prosecution against her led to a chilling effect on her fundamental right to free speech [p. 6].
The respondent State argued that the appellant being a renowned journalist was expected to be more responsible while making public comments. He submitted that the comment had the tendency of provoking communal disharmony. He submitted that the High Court was right in dismissing the application filed under section 482 of the Code of Criminal Procedure and requested the Court not to interfere as the investigation was in progress [p. 7].
After hearing contentions of both the parties, the Court began by quoting Thomas Jefferson, and stated that “it is of utmost importance to keep all speech free in order for the truth to emerge and have a civil society.” The Court further observed that “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 the 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 section 153 A IPC. Promotion of enmity between different groups on grounds of religion, race, place of birth, residence, language etc. and doing acts prejudicial to the maintenance of harmony is punishable with imprisonment which may extend to three years or with a fine or with both under section 153A” [p. 8].
The Court emphasized that under section 153A, the intention to cause disorder or incite people to violence was extremely necessary and the prosecution had to prove the existence of mens rea in order to succeed. The judges opined that the law needs to step in only where the written or spoken words have the tendency of creating public disorder or disturbance of law and order or affecting public tranquility [p. 9]. The judges observed that “the 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 Section 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” [p. 9].
The judges made reference to Bilal Ahmed Kaloo v. State of Andhra Pradesh, where the Supreme Court had held that mens rea was a necessary ingredient for the offence under section 153A and that merely inciting the feelings of one community or group without any reference to any other community or group could not attract the penalty. By citing Ramesh v. Union of India, the judges further reiterated that the alleged criminal speech should be judged from the standards of reasonable, strong-minded, firm and courageous men, and not those of weak and vacillating minds, nor of those who scent danger in every hostile point of view. The judges further stated that “the standard of an ordinary reasonable man or as they say in English law ‘the man on the top of a Clapham omnibus’ should be applied” [p. 11].
The Court also placed reliance on Pravasi Bhalai Sangathan v. Union of India where the Court had referred to the Canadian Supreme Court decision in Saskatchewan (Human Rights Commission) v. Whatcott. The judges examined the approach applied by Canadian Supreme Court in interpreting “hatred” as is used in legislative provisions prohibiting hate speech. The test devised by the Canadian judges was as follows: The first test was for the Courts to apply the hate speech prohibition objectively and in so doing, ask whether a reasonable person, aware of the context and circumstances, would view the expression as exposing the protected group to hatred. The second test was to restrict the interpretation of the legislative term “hatred” to those extreme manifestations of the emotion described by the words “detestation” and “vilification”. This would filter out and protect speech that might be repugnant and offensive, but did not incite the level of abhorrence, delegitimization and rejection that risks causing discrimination or injury. The third test was for Courts to focus their analysis on the effect of the expression at issue, namely, whether it was likely to expose the targeted person or group to hatred by others. The mere repugnancy of the ideas expressed would be insufficient to constitute the crime attracting penalty [p. 12].
By applying these principles to the instant case, the judges ruled that “a close scrutiny of the Facebook post would indicate that the agony of the appellant was directed against the apathy shown by the Chief Minister of Meghalaya, the Director General of Police and the Dorbar Shnong of the area in not taking any action against the culprits who attacked the non-tribals youngsters. The appellant referred to the attacks on non-tribals in 1979. At the most, the Facebook post can be understood to highlight the discrimination against non-tribals in the State of Meghalaya. However, 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 judges were of the opinion that the Facebook post when read in its entirety talked about equality of non-tribals in the State of Meghalaya and had no intention to promote class/community hatred or violence [p. 13].
While doing so, the judges highlighted that “India is a plural and multicultural society. The promise of liberty, enunciated in the Preamble, manifests itself in various provisions which outline each citizen’s rights; they include the right to free speech, to travel freely and settle (subject to such reasonable restrictions that may be validly enacted) throughout the length and breadth of India. At times, when in the legitimate exercise of such a right, individuals travel, settle down or carry on a vocation in a place where they find conditions conducive, there may be resentments, especially if such citizens prosper, leading to hostility or possibly violence. In such instances, if the victims voice their discontent, and speak out, especially if the state authorities turn a blind eye, or drag their feet, such voicing of discontent is really a cry for anguish, for justice denied – or delayed. This is exactly what appears to have happened in this case [p. 14].
The judges noted that the complaint filed against the appellant that her comments would incite communal tension and might instigate a communal conflict in the entire State, was only a figment of imagination. The judges ruled that the plea made by the appellant for protection of non-tribals living in the State of Meghalaya and for their equality could not be categorized as hate speech. Rather it was a call for justice – for action according to law, which every citizen has a right to expect and articulate. The judges further upheld that “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” [p. 15].
For the aforementioned reasons, the judges set aside the judgment of the High Court of Meghalaya and quashed the First Information Report filed against the appellant since no case could be made out under section 153 A and 505(1)(c) of the Indian Penal Code 1860 [p. 16].
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The Court expanded expression by raising the threshold of what can be constituted as hate speech. The judges noted that disapprobation of governmental inaction cannot be branded as an attempt to promote hatred between different communities. They also observed that calls for justice, equality and protection of a particular community in cases where the Government authorities have turned blind eye, can never be considered hate speech. Time and again, renowned journalists, activists and dissenters are implicated in criminal proceedings which have a chilling effect on their freedom of speech and expression. However in the present case, the judge clearly noted that free speech of the citizens of this country should not be stifled by implicating them in criminal cases, unless such speech has the tendency to affect public order.
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