By:- Gunjan Basrani
| NAME OF THE CASE | Amish Devgan v. Union of India |
| CITATION | Writ petition (criminal) no. 160 of 2020 |
| DATE OF THE CASE | 7 December 2020 |
| APPELLANT | Amish Devgan |
| RESPONDENT | Union of India |
| BENCH/JUDGES | Hon’ble Justice A. M. Khanwilkar Hon’ble Justice Sanjiv Khanna |
| LEGAL PROVISIONS | The Information Technology Act, 2000 (Section 66F) The Indian Penal Code, 1860 (Section 153B, 295A, 298, 505(2)) The Constitution of India, 1949 (Article 19(1)(a), 19(2)) |
INTRODUCTION
The contemporary culture is marked with confrontation through locution. The time has come when the warfare can begin by the speeches through social platforms as dehumanizing and defaming are new weapons of the society which they use to humiliate one person over mass level.[1] The freedom of speech and expression granted to the citizens under Article 19(1)(a) of the Indian constitution is misapprehended with hate speech. Hate Speech is a spanner in the working of freedom of speech and expression.
The Indian Constitution endeavour to hamper the growth of hate speech under the pretext of freedom of speech and expression. According to Article 51A (h) of the Indian Constitution, citizens must develop scientific temper, humanism, and the spirit of inquiry and reform.[2] Hate speech is penalized in various criminal laws of India.
Various judgement has been made in India to banjax the speeches that hurt the sentiments of any group or minor community. For instance, in the case of Dr Das Rao Deshmukh vs Kamal Kishore Nanasaheb Kadam, the appellant tried to acquire votes by raising a banner: “teach a lesson to the Muslims”. The court concluded that the slogan raised is contrary to the principle of secularism and dismantle the unity of India.
Similarly, in the recent judgement in the case of Amish Devgan v. Union of India, the Supreme Court spurn to accord emancipation in a writ petition to disband the criminal proceedings that alleged a news reporter who vilified and esteem Muslim Sufi. The two-judge bench pinpointed the significance of safeguarding the freedom of speech and expression together with safeguarding the interest of the minor community so that the dignity and unity of the nation is not compromised.
BACKGROUND
According to the Constitution of India, all the citizens of India has the right to speech and express their ideas, opinion, vision regarding any issue, debate, argument and political statement. In precise words, Article 19(1)(a) of the Constitution of India guarantees to all its citizens the right to freedom of speech and expression.[3] The landmark case for this article is considered as Maneka Gadhi v. Union of India[4], where it was propounded that freedom of speech is not a restrictive fundamental right instead it has no territorial limitation.
As India is a secular and diverse country it is obvious that its population may differ in ideologies and perspectives in terms of community, caste, class, creed, place, etc. The Supreme Court tried to have an eye on the issue of hateful speech and derogatory comments all around the country but it was found that it is certainly like to grasp at straws.
In this respective case of Amish Devgan v. Union of India, Journalist Amish Devgan, presently the Managing Director of many news channels which are owned and operated by TV18 Broadcast Limited, including News18 Uttar Pradesh/Uttarakhand, News18 Madhya Pradesh, News18 Rajasthan runs a debate show named ‘Aar Paar’ on News18 India and ‘Takkar’ on CNBC on 15th June. He was accused on the point of religious hateful speech and trying to make an attempt to shake the sanctity of the revered Moinuddin Chisti by calling him a robber and terrorist on a live broadcasting show.
The respondents argued that the Petitioner has tried to attack the sensitive issue on the live show by disgracing the Chisti and attempted to mislead the population against the Muslim Community. He also had the accusation that his channel tried to falsify the statements he made by uploading an edited video of that debate show on YouTube and all over the world in which the hateful comment was cut. In response, the petitioner filed a FIR and claimed that post the telecast he was abused, cussed, and was mounted with life ending threats.
As for his apology, On 17th June 2020 he made an appeal for apology by coming live on his news channel and saying that it was a matter of mistake because he didnt mean to disrespect the Pir Hazrat Moinuddin Chisti and he even visited there and performed holy rituals there. In counter of this the respondent delegates said that petitioner made a propoganda of apology after getting threats and criticism although he has no believe in Muslim community uprightness.
FACTS OF THE CASE
An influential television journalist, Amish Devgan hosted a debate show in which he defamed an venerate Muslim Sufi saint, Pir Hazarat Moinuddin Chishti. He lambasted the Muslim Sufi as “Terrorist Chishti came. Terrorist Chishti came. Robber Chishti came – thereafter the religion changed,”[5] elucidating that because of the terror of the Chishti the Hindus were forced to embrace Islam. After the show, it was alleged that Devgan has purposefully bad-mouthed about the Pir targeting the Muslim community and inflaming the religious loathing towards Muslims.
The journalist after the incident was threatened and abused by electronic means and by various social media platforms. Moreover, a number of FIRs were registered in different states against the journalist. 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.[6]
After a few days, Devgan posted a video amended his statement by conveying the fact that he had unconsciously took the name of Pir Hazrat Moinuddin Chishti instead of Alauddin Khilji. Furthermore, he apologized in his video which was broadcasted on the same television channel. Amish Devgan also knock the door of the Supreme Court and filed a writ petition to dismiss the FIRs that were filed against him under the provision of section 482 of the Criminal procedure Code, 1973. However, this petition was opposed by number of states.
ISSUES RAISED BEFORE THE COURT
- Whether an extrajudicial relief should be granted to the petitioner?
- Whether the unity and integrity of the nation should be compromised at the cost of freedom of expression?
- How to hamper the growth of hate speech?
- Whether the seven FIRs filed against the petitioner could be clubbed or not?
CONTENTIONS
Arguments from the Petitioner’s side:
- The petitioner’s intention was not to inflame religious beliefs.
- The petitioner’s advocate argued that the petitioner had tweeted a video apologizing for his mistake as he took the name of Pir Hazrat Moinuddin Chishti instead of Alauddin Khilji.
- It was also argued that the petitioner, Amish Devgan was abused and given death threats on various social media platforms.
- It was also stated that no offence can be made out under Section 66F of the Information Technology Act, 2000.
- The petitioner also aver that he has utter believe in Banda Nawaz Hazrat Khwaja Moinuddin Chishti and he has also offered his respect to Ajmer Shariff.
- It was also stated that the FIRs were registered just to harass the petitioner and they should be quashed by the Court as it were registered in places where no cause of action arose.
Arguments from the Respondent’s side:
- Many states such as Maharashtra, Rajasthan, Telangana and Uttar Pradesh, and various other private respondents were hostile of the petition made by the journalist.
- It was argued that Amish Devgan is a perpetual delinquent who frequently use offensive language on the sensitive issues like religion.
- The petitioner had twice repeated the words ‘aakrantak Chishti aya,’ followed by the words ‘lootera Chishti aya’.[7] The deliberate use of blasphemy described the Pir as a terrorist and robber who visited India to convert its population to Islam.
- It was also revealed that the petitioner altered the YouTube video of the debate show and purposefully expunged the part where he defamed the revered Muslim Sufi as terrorist and robber.
- It was also stated that the real intention of the petitioner was to incite disharmony among the religious groups as the theme of the debate show anchored by the petitioner was also communal.
- The claim of the petitioner that he mistakenly uttered the name of the Pir instead of Alauddin Khilji was vague.
- It was argued that the petitioner apologized because of the fear of the number of FIRs that were registered against him and not because he was truly guilty.
- Section 19 of the Cable TV (Regulation) Act prohibits cable TV network to broadcast any content that promotes hate or ill will.[8]
PROVISIONS RELATED TO THE CASE
- The Constitution of India, 1949
- Article 19(1)(a): Article 19(1)(a) of the Constitution of India guarantees to all its citizens the right to freedom of speech and expression.[9]
- Article 19(2): It states that “Nothing in sub clause (a) of clause ( 1 ) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub clause in the interests of the sovereignty and integrity of India, the 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.”[10]
- The Indian Penal Code, 1860
- Section 153B: Section 153B of the IPC safeguards the interests of ‘class of persons’ and above all the ‘national integration’ by providing punishment against imputations and assertions prejudicial to national integration. [11]
- Section 295A: It states that “Deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs: Whoever, with deliberate and malicious intention of outraging the religious feelings of any class of [citizens of India], [by words, either spoken or written, or by signs or by visible representations or otherwise], insults or attempts to insult the religion or the religious beliefs of that class, shall be punished with imprisonment of either description for a term which may extend to 4[three years], or with fine, or with both.]”[12]
- Section 298: It states that “Uttering, words, etc., with deliberate intent to wound the religious feelings of any person: Whoever, with the deliberate intention of wounding the religious feelings of any person, utters any word or makes any sound in the hearing of that person or makes any gesture in the sight of that person or places, any object in the sight of that person, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.[13]
- Section 505(2): It states that “Statements creating or promoting enmity, hatred or ill-will between classes: Whoever makes, publishes or circulates 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, shall be punished with imprisonment which may extend to three years, or with fine, or with both.”[14]
- Section 153B: Section 153B of the IPC safeguards the interests of ‘class of persons’ and above all the ‘national integration’ by providing punishment against imputations and assertions prejudicial to national integration. [11]
- The Information Technology Act, 2000
- Section 66F: Section 66F of Information Technology Act, 2000 defines Punishment for cyber terrorism.[15]
JUDGEMENT
“Hate Speech is not Free Speech”
The gulf between freedom of speech and hate speech is promulgated in the case of Amish Devgan v. Union of India. In this case, a famous journalist anchored a debate show in which he humiliated a revered Pir as an invader, terrorist and robber. Several FIRs were filed against him post the show in different states as it aims to disharmonize the unity of the country. The journalist filed a writ petition to abrogate the FIRs registered against him which was refused by the Court. However, the court accorded interim protection for Devgan and his family.
The two-judges bench bestowed a meticulous interpretation of public speech that expresses hate. The court also untangled the provisions of freedom of speech and its flaws. In the case of Pravasi Bhalai Sangathan v. Union of India[16], the court directed the Law Commission of India to make inquiries and to propose recommendations for making new laws on hate speech.
Referring to the Law Commission’s Report, in this case, the court noted 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.[17]
The court also quoted the offences of hate speech around the world. The Court ingeminated Andrew Sellar’s essay Defining Hate Speech which 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.[18]
The court categorizes freedom of speech as the right of the citizens to criticize the government strategies and hate speech as inciting communal violence. The court cited cases such as Ramji Lal Modi v. State of U.P.[19] in which it was held that the malicious deliberation should be present. In yet another case, Shreya Singhal v, Union of India[20], the court concluded that the restriction on the freedom of speech and expression should be on valid grounds.
It added, with reference to the US case of Beauharnais v. Illinois, that dignity here relates not to individual dignity but group dignity.[21] It also highlighted that the freedom of speech and expression must not overpower and challenge the unity and integrity of the country or promote clashes among the religious groups.
The court, therefore, concluded its decision by giving interim protection to the journalist, Amish Devgan and his family throughout the investigation if he is willing to cooperate. The court spurned to quash the seven FIRs filed against Amish Devgan but decided to club these and to be heard together.
CONCLUSION
In the case of Amish Devgan v. Union of India where the journalist, Amish Devgan humiliated a revered Pir as a terrorist and robber in the debate show which was broadcasted all over India. A number of FIRs were registered against him in many states. Therefore, the journalist approached the court with an appeal to quash the FIRs filed against him which was refused by the court. The Court however provided interim protection to the journalist.
To my understanding, the judgment of the case is pertinent as hate speech should not be misapprehended as freedom of speech. The Constitution of India under Article 19(1)(a) gives its citizen the freedom of speech and expression but condemn hate speech as it violates the principle of secularism and incites disharmony among the different religious groups.
[1] Legal Service India https://www.legalserviceindia.com/legal/article-2800-the-battle-between-hate-speech-and-freedom-of-speech [last visited on January 29, 2022]
[2] Article 51A(h) of the Constitution of India, 1949.
[3] Article 19(1)(a) of the Constitution of India, 1949.
[4] Maneka Gandhi v. Union of India, 1978 SCR (2) 621.
[5] Indian Kanoon, https://indiankanoon.org/doc/179868451/ [last visited on January 29, 2022]
[6] Global Freedom of Expression, https://globalfreedomofexpression.columbia.edu/cases/devgan-v-union-of-india/ [last visited on January 29, 2022]
[7] Indian Kanoon, https://indiankanoon.org/doc/179868451/ [visited on January 30, 2022]
[8] ibid
[9] Article 19(1)(a) of the Constitution of India.
[10] Article 19 (2) of the Constitution of India.
[11] Section 153B of the Indian Penal Code, 1860.
[12] Section 295A of the Indian Penal Code, 1860.
[13] Section 298 of the Indian Penal Code, 1860.
[14] Section 505(2) of the Indian Penal Code, 1860.
[15] Section 66F of Information Technology Act, 2000.
[16] Pravasi Bhalai Sangathan v. Union of India, (2014) 11 SCC 477.
[17] Supra note 4
[18] Supra note 4
[19] Ramji Lal Modi v. State of U.P. AIR 1957 SC 620.
[20] Shreya Singhal v. Union of India, (2015) 5 SCC 1.
[21] Supra note 4
