Content Regulation / Censorship, Religious Expression
Otto-Preminger-Institut v. Austria
Closed Expands Expression
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The High Court of Rajasthan in India allowed two petitions seeking to quash the First Information Report (FIR) filed against journalist Anna MM Vetticad and Twitter CEO Jack Dorsey for posting a photo to Twitter featuring the slogan: “Smash Brahminical Patriarchy”. The FIR was filed by Rajkumar Sharma, a member of the Brahmin community and man of “immense religious faith”, who alleged that the tweet “badly hurt” the “feelings of the entire Brahmin community”. [p. 5] The Court held that “allowing investigation of the impugned FIR to be continued is absolutely uncalled for.” [p. 7] Justice Sandeep Mehta reasoned that the slogan could not reasonably be considered to hurt the religious sentiments of any Indian citizen or create a religious rift in society. The Court further determined that the necessary ingredients of the alleged offences had not been made out, thereby halting any further police proceedings against the petitioners.
In November of 2018, Twitter co-founder and chief executive Jack Dorsey, the second petitioner in this case, spent a week travelling India. On November 18, 2018, Mr Dorsey attended a roundtable discussion with Indian women journalists, activists and writers to discuss their experiences of Twitter in India. Following the meeting, the second petitioner, journalist Anna MM Vetticad, tweeted a photo of a group of women alongside Mr Dorsey, who held a poster bearing the slogan: “Smash Brahminical Patriarchy.” Brahmin is the upper class in Hinduism specialising as priests, teachers and protectors of sacred learning.
The respondent in this case, Rajkumar Sharma, alongside the State of Rajasthan, is a member of the Brahmin community and a man of “immense religious faith”. Mr Sharma alleged that the twitter post hurt the “feelings of the entire Brahmin community.” [p. 3] On November 19, Mr Sharma submitted a written report to the Police Station Basni and then to the Commission of Police, Jodhpur; both refused to register the FIR. The respondent subsequently filed the complaint in the court, praying that the petitioners be prosecuted under Sections 295-A, 500, 501, 504, 505 and 120-B of the Indian Penal Code. The complaint was forwarded to the Police Station Basni, District Jodhpur, where the impugned FIR was registered against the two petitioners in this case.
Anna MM Vetticad and Jack Dorsey filed petitions under Section 482 CrPC to quash the FIR registered against them and “all subsequent proceedings sought to be taken thereunder”. [p. 2] The petitioners submitted that the impugned FIR does not provide the “necessary ingredients of any offence” and that the petitioners did not intend to hurt the feelings of the Brahmin society. [p. 4]
Justice Sandeep Mehta delivered the opinion of the High Court of Judicature for Rajasthan.
The main issue before the Court was whether the “ingredients” of the offences alleged by Mr Sharma and the State of Rajasthan are prima facie made out in the impugned FIR against the petitioners.
Rajkumar Sharma, as a member of the Brahmin community, alleged that the tweet posted by Ms Vetticad and featuring Mr Dorsey “maligned the Brahmin society at large and also acted in a manner, likely to create rift and factions in the society and induce religious hatred towards the Brahmin community as a whole.” [p. 3] As such, he prayed that the petitioners be prosecuted under Sections 295-A, 500, 501, 504, 505 and 120-B of the Indian Penal Code. Section 295-A seeks to “punish deliberate and malicious acts intended to outrage the religious feelings of any class by insulating its religion or the religious beliefs.” Section 500 and 501 concerns the punishment for defamation. Sections 504 and 505 punish provocation of violence and incitement against any class or community. Section 120-B is the punishment of criminal conspiracy. Mr Sharma subsequently sought dismissal of the present petitions, arguing that the allegations listed in the impugned FIR do include the necessary ingredients and should not be quashed.
The first petitioner, Ms Vetticad, submitted that she had never intended to offend anyone and was willing to “tweet an apology so as to placate the hurt sentiments” of any member of the Brahmin community. The second petitioner, Mr Jack Dorsey, submitted that the impugned FIR does not identify the “necessary ingredients of any offence”. [p. 4] They further contend that the petitioners did not aim to hurt the feelings of the Brahmin community. Rather, an unknown individual gave Mr Dorsey the offending placard and it was “casually posted” by Ms Vetticad without intent to offend the Brahmin community. Furthermore, the registration of FIR against the petitioners for an offence under Section 295-A is not permissible without the previous sanction of the Central or State Government, which had not happened. In addition, they further contended that it cannot be inferred that the religious sentiments of any citizen in India were hurt merely by the publication of the impugned tweet. Rather, the “Brahmnical Patriarchy” is intended “to enforce effective sexual control over women to maintain not only patrilineal succession, but also caste purity, the institution unique to Hindu society”. [p. 4-5] As such, the relevance of the theory is a “matter of sociological discussion”, rather than religious sentiment.
The Court allowed the petitions. Justice Sandeep Mehta held that the slogan “Smash Brahminical Patriarchy” could not be interpreted to be injurious to “the religious sentiments of any citizen of India” or to create “a religious based rift in any section of society”. [p. 6] Rather, the slogan demonstrates concern and opposition to the “Brahminical Patriarchal system and desirous of denouncing the same”. [p. 6] The Court further determined that adherence to the patriarchal system in any society is “a matter of personal choice and cannot be thrust down anyone’s throat”. [p. 6] In addition, the Court affirmed that the necessary ingredients of the alleged offence had not been made out. On this basis, the Court quashed the impugned FIR and any investigations thereof.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The Court expands freedom of expression in affirming the rights of individuals to oppose and denounce religious systems. The Court found that an expression to denounce religious patriarchy or express criticism regarding the social position of any section of a religious community had no direct link with intention to cause rifts on the basis of religion. It is also significant that the power exercised is not permitting further investigation on the basis of the facts alleged, an extraordinary remedy exercised to prevent the harms caused pre-trial and during trial in cases where there was no doubt regarding the commission of an offence. Therefore, the Court adopts a high threshold of what would constitute the offence of outraging religious feelings, thereby protecting legitimate sociological criticism of religion.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
The decision is a judgment of a single judge of the High Court and therefore, binding on all lower Courts.
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