Supreme Court of India
|NAME OF THE CASE||Amish Devgan v. Union Of India|
|CITATION||Writ Petition (Criminal) No. 160 of 2020|
|DATE OF THE JUDGEMENT||December 7, 2020|
|RESPONDENT||Union of India|
|BENCH/JUDGES||S. Abdul Nazeer, Sanjiv Khanna|
|STATUTES/CONSTITUTION INVOLVED||Constitution of India, Indian Penal Code 1860, Criminal Procedure Code, Information Technology Act,2000 Place of worship Act, 1991|
|IMPORTANT SECTIONS/ARTICLES||Indian Constitution – Article 32, 19. Indian Penal Code 1860 – sec. 153A, 295A, and 505(2),34. Information Technology Act,2000 – sec. 66-F. Code of Criminal Procedure, 1973 – sec. 482, 179, 156.|
In this case two judge bench of Supreme Court refused to grant relief from the criminal proceedings against a television journalist named Amish Devgan who used a derogatory language against a Muslim saint. Amish Devgan is presently the managing director of many news channels owned and operated by TV18 Broadcast Ltd including many news channels like News18 Madhya Pradesh/Chhattisgarh, Uttar Pradesh/Uttarakhand, and Rajasthan. Amish Devgan hosted a debate show named ‘Aar Paar’ in which around 7:30 p.m. on June 15, 2020 during the discussion on place of worship (Special Provisions) Act, 1991 which “prohibits conversion and provides for maintenance of the religious character of places of worship as it existed on 15th August, 1947” he used hate speech against Hazrat Moinuddin Chishti a Muslim saint which was said that he was trying to spread hatred towards Muslims. The court made an analysis of Indian legal framework on hate speech as well as provided an overview of comparative jurisprudence on the issues the court mainly emphasized on the importance of protection of right to speech and also protecting the dignity and unity of nation at the same time from any hate speech which may threaten that dignity and unity.
In the present case Amish Devgan filled a writ petition claiming that post the telecast he was given death threats and was abused on his phone, twitter, Facebook and other social media platforms and a number of First Information Reports (FIRs) – “information given to a police officer about a criminal offence” on fearing for his life he filed an FIR No. 539 of 2020 on June,20 at the police station of Noida, Utter Pradesh and he also submitted the links to the threats received through social media.
On June 22, 2020 Amish Devgan filled a writ petition in the Supreme Court seeking dismissal of all the seven FIRs against him as an extraordinary judicial relief under section 482 of Criminal Procedure Code, 1973. The hearing of this writ petition came up on 26 June, 2020 where a notice was issued with the a direction to the petitioner to implead the informants. An order was passed that till the next date of hearing there would be a stay on any further action on FIRs in writ petition and petitioner would we protected against any coercive process arising relating to FIRs.
These FIRs were registered against him under section 295A “Deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs,” 505 “Statements conducing to mischief,” 153A “Promoting enmity between different [religious] groups. And doing acts prejudicial to maintenance of harmony,” 34 “Acts done by several persons in furtherance of common intention” of Indian Penal Code, 1860.
FACTS OF THE CASE
The facts in this case is that petitioner is a television journalist who used a derogatory language against a Muslim saint named Hazrat Moinuddin Chishti in his debate show named ‘Aar Paar’ in which around 7:30 p.m. on June 15, 2020 during the discussion on place of worship (Special Provisions) Act, 1991 the petitioner siad lines like “aakrantak Chishti aya… aakrantak Chishti aya… lootera Chishti aya… uske baad dharam badle”. If we translated in English the words spoken would read – “Terrorist Chishti came. Terrorist Chishti came. Robber Chishti came – thereafter the religion changed,” this speech of his hurt the feeling of a specific community and promoted religious hatred towards Muslims and also promoted in harming the dignity and unity of nation.
Amish Devgan filled a writ petition in Supreme court claiming that post the telecast he was given death threats and was abused on his phone, twitter, facebook and other social media platforms and a number of First Information Reports (FIRs) – “information given to a police officer about a criminal offence” on fearing for his life he filed an FIR No. 539 of 2020 on June,20 at the police station of Noida, Utter Pradesh and he also submitted the links to the threats received through social media.
Devgan filled a writ petition in the Supreme Court seeking dismissal of all the seven FIRs against him as an extraordinary judicial relief under section 482 of Criminal Procedure Code, 1973. The hearing of this writ petition came up on 26 June, 2020 where a notice was issued with the a direction to the petitioner to implead the informants. On June 17,2020 Amish Devgan tweeted a vedio apologizing for his acts and said he mistakenly referred to Pir Hazrat Moinuddin Chishti when he meant to refer to Alauddin Khilji his apology was also shown on the television channels. He said he took the name of Chishti but he had no such intention to hurt anybodys feelings and accordingly he apologized to anyone who was hurt because of his speech.
An interim order was passed on the writ petition that till the next date of hearing there would be stay on any further steps on the FIRs mentioned in writ petition. The petition was amended and the prayer was made stating that :-
- Issue of writ of certiorari, quashing the FIRs or any criminal complaint which may be filed because of the telecast on 15 June, 2020.
- Transfer and club the FIRs mentioned with the first FIR i.e. FIR No. 78 in Police Station of Rajasthan.
- Issue a writ of mandamus so that no coercive process shall be taken against petitioner in the FIRs of subsequent complaint or on the subject of broadcast.
- Asked the Union of India to provide adequate safety to the petitioner and also security to him, his family members and his colleagues at many places in the country.
ISSUE RAISED BEFORE THE COURT
- Whether the words used in speech are of such a nature that may create hatred towards a community in the minds of other people?
- Whether the words are of such a nature that they may damage unity and integrity of nation?
- Whether right to speech under article 19(a) shoud be provided with restrictions on few words?
ARGUMENTS FROM THE APPELANT SIDE
Number of submissions were made by the petitioner :-
- He stated that multiple FIRs arising out of the same incident are abuse of law and violation of fundamental rights of petitioner and freedom of press which also effects the freedom of speech and expression.
- He said that all criminal proceedings filed against him were designed to “harass and intimidate” him.
- He also stated that there was no offence committed under Indian Penal Code, 1860 or the Information Technology Act,2000 as he no intention to “outrage religious beliefs and feelings” and all his words were merely because of his carelessness which would not fall under section 153A, 295A, and 505(2) of the Penal Code and section 66-F of IT Act.
- It was submitted that in this case of trifle or minor harm it should be covered by section 95 of Penal Code also it was submitted that all the FIRs should be clubbed and transferred to Delhi or Noida.
The prayer made by petitioner are opposed by the sate of Rajasthan Telangana, Maharashtra and Uttar Pradesh and private respondents. Informants submitted that the petitioner was a habitual offender and had numerous earlier incidents in past. It was said that the petitioner had twice repeated the word ‘aakrantak Chishti aya,’ followed by the words ‘lootera Chishti aya’ all this reflects the intention of the patitioner.
ARGUMENTS FROM THE RESPONDENT SIDE
- Respondents argued that Amish Devgan was a “Habitual Offender” as he made the same statements on the Pir in past and had offered similar apologies every time.
- They argued that it was not possible to make same mistake three times and Devgan mentioned the word “Chishti” three times during show.
- The recording of the debate that was uploaded on YouTube was edited and the word Chishti was removed.
- Respondent also mentioned that Devgan apology was not genuine as it was done after the FIRs were filed.
- They also said that main purpose of the debate was to “malign the Muslims and to promote hatred.”
- They stated that article 19 of the Indian Constitution (protection of right to freedom of expression and speech) should be subject to express limitations and also the section 19 of cable TV Act prohibits the broadcast of any of the content that promotes hate or ill will.
Constitution of India
- Article 32 :- Remedies for enforcement of right conferred by this part.
- Right to move to supreme Court by appropriate proceeding for the enforcement of the right conferred by this Part is guaranteed.
- The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warrant and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.
- Without prejudice to the powers conferred on the Supreme Court by clause ( 1 ) and ( 2 ), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2).
- The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution.
- Article 19 :- Protection of certain rights regarding freedon of speech etc.
Indian Penal Code, 1860
- section 153A :- Whoever commits an offence specified in sub-section (1) in any place of worship or in any assembly engaged in the performance of religious worship or religious ceremonies, shall be punished with imprisonment which may extend to five years and shall also be liable to fine.
- Section 295A :- 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 insult or by visible representations or otherwise, insults or attempt to insult the religion or the religious beliefs of the class shell be punished with imprisonment of either description for a term which may extend to three years or with fine or with both.
- Section 505(2) :- Whoever commits an offence specified in sub-section (2) in any place of worship or in any assembly engaged in the performance of religious worship or religious ceremonies, shall be punished with imprisonment which may extend to five years and shall also be liable to fine.
Information Technology Act,2000
- Section 66-F :- Punishment for cyber terrorism
- Whoever commits the offence of cyber terrorism.
- Whoever commits or conspires to commit cyber terrorist shall be punishable with imprisonment which may extend to imprisonment for life time.
Code of Criminal Procedure, 1973
- Section 482 :- Saving of inherent powers of High Court. Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.
- Section 179 :- Offence triable where act is done or consequence ensues. When an act is an offence by reason of anything which has been done and of a consequence which has ensued, the offence may be inquired into or tried by a Court within whose local jurisdiction such thing has been done or such consequence has ensued.
- Section 156 :- police officer’s power to investigate cognizable case.
- Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII.
- No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate.
- Any Magistrate empowered under section 190 may order such an investigation as above- mentioned.
Court made a thorough analysis of the nature of hate speech offences around the world and also of Indian constitutional and legislative framework of right to freedom of expression and all its permissible limitations. “it remains difficult in law to draw the outmost bounds of freedom of speech and expression beyond which the right would fall foul” and it also highlighted the considerations of “democratic values and public law”.
Court referred to the case of Pravasi Bhalai Sangathan v. Union of India (2014) the court requested the law commission of India to research and make recommendations to parliament on creating new laws regarding the hate speech. The court referred to law commission Report in detail and it was noted that the report covered the international standards addressing hate speech included in article 20(2) of ICCPR, the court noted that European Court of Human Rights has held “ speech propagating religious intolerance, negations, homophobia etc. has been excluded from the ambit” of protecting the right to free speech. The court looked at the approach to hate speech In united Kingdom, United states, Canada, South Africa, Germany and France. The court noticed that in Germany the freedom of expression can be limited by “equality dignity and multiculturalisam”and also “German application strikes a balance between rights and duties between individual and community and between the self expression needs of speaker and the self respect and dignity of the listeners.”
The court conducted a review of Indian jurisprudence for laws criminalizing and insulting religious beliefs an threats to public and also there is a need to balance conflicting constitutional rights. The referred to the case of Ramji Lal Modi v. State of U.P. in this case court highlighted that intention of to insult must be present and mentioned in case of Maneka Gandhi v. Union Of India 1978 the court stressed that rights to liberty, equality, expression, religion, and the cultural and educational rights are interrelated and also the right to freedom of expression “is absolutely sacrosanct in the sense that it is essential for individual growth and progress of democracy.”
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”
Court took lots of time on the discussion of the role of free speech in democracy and stated that “freedom to express and speak is the most important condition for political democracy” and said we can challenge the government policy but making false statement about government policy would never constitute hate speech. 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.”
The court analysed the legislative provisions under which the FIRs had been filed against Amish Devgan. The court dismissed Devgan’s arguments the argument that criminal proceedings could only be filed in the jurisdiction where the debate was filmed and noted. 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 test of context, content, intent and harm to deteremine if the offence had been made or not. The court stated that “careful and in-depth consideration” and said it would not dismiss the FIRs but it granted interim protection to the petitioner against arrest subject to his joining and completion of investigations. The court said that all the separate complaints should be treated as statement but all of then will be combined and heard together at the place where first complaint was lodged.
Constitution of India does not expressly guarantee the freedom of press or media for so many words. Constitution provides freedom of speech and expression under Article 19 of constitution. In the case named Express Newspapers Ltd. V. Union of India, justice P.N. Bhagwati pointed out that, “the liberty of the press is an essential part of the right to freedom of speech and expression and consists of having no restraints.” Therefore it can be said that under law in India media enjoys no special privileges and as rules it’s has to act subordination to the large interest of the community as justice Hidayatulla said in case Ranjit Udeshi v. State of Maharashtra “ the Press is free to express opinions to change the political and social conditions or for the advancement of human knowledge.”
Indian criminal justice system expect media to observe certain norms of behaviour. It is often seen that media people and generalist face many criminal actions against him or her by the offended party or an individual. In recent times there has been many several debates on decriminalization of section 295 for many reasons. I think we should balance both sides of the debate and narrow down the purview of this section to make sure it does not become an obstacles to freedom of expression for people and for media of our country.
 Arnab Ranjan Goswami v. Union of India and Others,SCC 0nline (2020).
 Balwant Singh and Another v. State of Punjab,SC 462 (1995).
 Global Freedom of Expression, https://globalfreedomofexpression.columbia.edu/cases/devgan-v-union-of-india/#:~:text=The%20two%2Djudge%20bench%20of,against%20a%20revered%20Muslim%20saint. ( last visited on Jun. 30, 2022).
 The Constitution of India, 1950, Art. 32.
 The Constitution of India, 1950, Art. 19.
 See The Indian Penal Code, 1860, §153A.
 See The Indian Penal Code, 1860, §295A.
 See The Indian Penal Code, 1860, §505(2).
 Information Technology Act, 2000, §66-F.
 See The Code of Criminal Procedure, 1973, §482.
 See The Code of Criminal Procedure, 1973, §179.
 See The Code of Criminal Procedural, 1973, §156.
 Pravasi Bhalai Sangathan v.Union of India,2014 11 SCC 477.
 Ramji Lal Modi v. State of U.P.,AIR 1957 SC 620.
 Maneka Gandhi v. Union Of India,1 SCC 248.