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Criticism of Government Cannot Be Ground For Penal Action: SC

It is really a matter of great solace and immense satisfaction to see that the Supreme Court has most recently on December 7, 2020 in a latest, learned, landmark and laudable judgment titled Amish Devgan vs Union of India and others in Writ Petition (Criminal) No. 160 of 2020 held quite explicitly, elegantly and effectively that criticism of the government must be protected from criminal prosecution under charges of hate speech or public mischief while outlining the contours of hate speech and freedom of expression. A Bench of Justices AM Khanwilkar and Sanjiv Khanna of Apex Court held in no uncertain terms that “disloyalty” to the government by law and comments was not an offence if it did not call for violence and public disorder. Very rightly so!

Be it noted, the Judges who were hearing a petition by journalist Amish Devgan to quash FIRs over his remarks on Sufi seer Moinuddin Chishti, also underscored that “political speech relating to government policies requires greater protection for preservation and promotion of democracy” as freedom to express and speak is the most important condition for political democracy. Government also must develop more tolerance to criticism so that our democracy functions smoothly. Only then can  we call ourselves a healthy democratic country!

To start with, Justice Sanjiv Khanna who authored this notable judgment for himself and Justice AM Khanwilkar sets the ball rolling by first and foremost observing in para 2 that, “The writ petitioner, Amish Devgan, is a journalist who, it is stated, is presently the managing director of several news channels owned and operated by TV18 Broadcast Limited, including News18 Uttar Pradesh/Uttarakhand, News18 Madhya Pradesh/ Chhattisgarh and News18 Rajasthan.”

More significantly, the Bench then very brilliantly, boldly and bluntly goers on to  then state in para 32 that, “In Kedar Nath Singh, a Constitution Bench of five Judges of this Court had interpreted Sections 124A and 505 of the Penal Code post amendment to clause (2) to Article 19 of the Constitution widening its ambit by incorporating the words- ‘in the interest of’ … ‘public order’. Reference was made to the difference in approach and interpretation by Sir Maurice Gwyer, C.J., speaking for the Federal Court in Niharendu Dutt Majumdar and the decision of the Privy Council in Sadashiv Narayan Bhalerao, which had approved the elucidation by Strachey, J. in Bal Gangadhar Tilak. This court held that the exposition of law by the Federal Court in Niharendu’s case would be apposite and in conformity with the amended clause (2) of Article 19. Specific reference was made to the dissenting opinions of Fazl Ali, J., in Romesh Thappar and Brij Bhushan, to observe that the difference between the majority opinion in the two cases and the minority opinion of Fazl Ali, J. had prompted the Parliament to amend clause (2) of Article 19 by the Constitution (First Amendment) Act, 1951 with retrospective effect. Fazl Ali, J. had held that the concept of ‘security of state’ was very much allied to the concept of ‘public order’ and that restrictions on the freedom of speech and expression could validly be imposed in the interest of public order. At the same time, this court had cautioned that the two penal provisions, read as a whole together with the explanation, aim at rendering penal only those activities which would be intended, or have the tendency, to create disorder or disturbance of public peace by resort to violence. It was elutriated that criticism and comments on government’s action in howsoever strong words would not attract penal action as they would fall within the fundamental right of freedom of speech and expression. The penal provisions catch up when the word, written or spoken etc., have the pernicious tendency or intention of creating public disorder. So construed, the two provisions strike the correct balance between individual fundamental rights and the interest of public order. For interpretation, the court should not only have regard to the literal meaning of the words of the statute but take into consideration the antecedent history of the legislation, its purpose and the mischief it seeks to suppress.”

No less significant is what is then stated in para 34 that, “We have referred to the judgment in Kedar Nath Singh, for it interprets clause (2) of Section 505 of the Penal Code and also lays down principles and guidelines to interpret a penal provision in the context of the fundamental right to freedom of speech and expression. Secondly, and more importantly, this decision affirms the view of the Federal Court in Niharendu’s case that the expression ‘government established by law’ has to be distinguished from the ‘persons for the time being engaged in carrying on the administration’. The former is the visible symbol of the State, which gets enwrapped when the very existence of the State will be in jeopardy if the government established by law is subverted. Written or spoken words etc. that bring the State into contempt or hatred or create disaffection fall within the ambit of the penal statute when the feeling of disloyalty to the government established by law or enmity to it imports the idea of tendency to public disorder by use of actual violence or incitement to violence. Equally, strongly worded expression of disapprobation of the actions of the government, even elected government, without exciting those feelings which generate the inclination to cause public disorder by acts of violence would never be penal. Further, disloyalty to the government by law and comments even in strong terms on the measures or acts of the government so as to ameliorate the condition of the people or to secure cancellation or alteration of those actions or measures by lawful means, without exciting of those feelings of enmity and disloyalty which imply excitement to public disorder or use of force, is not an offence. Another significant advertence is to the principle that recognises that if two views are possible, the court should construe the provisions of law penalising ‘hate speech’ in the way that would make them consistent with the Constitution, and an interpretation that would render them unconstitutional should be avoided. Interpreting the sections under challenge, the provisions were read as a whole to make it clear that the aim is to render penal only such activities as would be intended, or have a tendency, to create public disorder or disturbance of public peace by resort to violence. As a sequitur it follows that the courts should moderate and control the ambit and scope of the penal provisions to remain within and meet the constitutional mandate. Interpretation and application that is distant and beyond the superior command of the permissible constitutional limitation vide clause (2) to Article 19 is unacceptable.”

Quite remarkably, the Bench then observes in para 35 that, “The decision in Ramji Lal Modi and the later decision in Bilal Ahmed Kaloo, which had examined Sections 153A and 505(2) of the Penal Code, had primarily applied the ‘Bad Tendency test’ as propounded by the American jurists. In Dr. Ram Manohar Lohia, the Constitution Bench of five Judges, referring to the words ‘in the interest of… public order’ in clause (2) to Article 19 had observed that order is a basic need in any organised society. It implies orderly state of society or community in which the citizens can peacefully pursue their normal activities of life. This is essential as without order there cannot be any guarantee of other rights. Security of the State, public order and law and order represent three concentric circles: law and order being the widest, within which is the next circle representing public order and the smallest circle represents the security of the State. The phrase ‘security of the State’ is nothing less than endangering the foundations of the State or threatening its overthrow. It includes events that have national significance or upheavals, such as revolution, civil strife, war, affecting security of the State but excludes breaches of purely local significance. The phrase ‘minor breaches’ refers to public inconvenience, annoyance or unrest. The phrase ‘in the interest of…public order’, in the context of clause (2) to Article 19, would mean breaches of purely local significance, embracing a variety of conduct destroying or menacing public order. Public order, in view of the history of the amendment is synonymous with public peace, safety and tranquillity. Further, any restriction to meet the mandate of clause (2) to Article 19 has to be reasonable, which means that the restriction must have proximate and real connection with public order but not one that is far-fetched, hypothetical, problematic or too remote in the chain of its relationship with public order. Restriction must not go in excess of the objective to achieve public order. In practice the restriction to be reasonable, should not equate the actus with any remote or fanciful connection between a particular act of violence or incitement to violence. This Court upheld the decision of the Allahabad High Court striking down Section 3 of the U.P. Special Powers Act, 1932 as the section within its wide sweep had included any instigation by words, signs or visible representation not to pay or defer payment of any extraction or even contractual dues of the government authority, land owner, etc. which was treated as an offence. Even innocuous speeches were prohibited by threat of punishment. It was observed there was no proximate or even foreseeable connection between such instigation and the public order sought to be protected. Similarly, the argument of the State that instigation of a single individual in the circumstances mentioned above may in long run ignite revolutionary movement and destroy public order was rejected on the ground that fundamental rights cannot be controlled on such hypothetical and imaginary considerations. The argument that in a democratic society there is no scope for agitational approach and the law, if bad, can be modified by democratic process alone was rejected on the ground that if the same is accepted it would destroy the right to freedom of speech. However, what is important is the finding that public order is synonymous with public safety and tranquillity, in the sense that the latter terms refer to the former. The terms refer to absence of disorder, involving breaches of local significance in contradiction to national upheavals affecting security of the State. Yet they have be serious enough like civil strife and not mere law and order issues. Further, the ‘proximate nexus test’ in the ‘interest of public order’ should be satisfied.”

What’s more, it is then also lucidly stated in para 54 that, “The present case, it is stated, does not relate to ‘hate speech’ causally connected with the harm of endangering security of the State, but with ‘hate speech’ in the context of clauses (a) and (b) to sub-section (1) of Section 153A, Section 295A and sub-section (2) to Section 505 of the Penal Code. In this context, it is necessary to draw a distinction between ‘free speech’ which includes the right to comment, favour or criticise government policies; and ‘hate speech’ creating or spreading hatred against a targeted community or group. The former is primarily concerned with political, social and economic issues and policy matters, the latter would not primarily focus on the subject matter but on the substance of the message which is to cause humiliation and alienation of the targeted group. The object of criminalising the latter type of speech is to protect the dignity (as explained above) and to ensure political and social equality between different identities and groups regardless of caste, creed, religion, sex, gender identity, sexual orientation, linguistic preference etc. Freedom to express and speak is the most important condition for political democracy. Law and policies are not democratic unless they have been made and subjected to democratic process including questioning and criticism. Dissent and criticism of the elected government’s policy, when puissant, deceptive or even false would be ethically wrong, but would not invite penal action. Elected representatives in power have the right to respond and dispel suspicion. The ‘market place of ideas’ and ‘pursuit of truth’ principle are fully applicable. Government should be left out from adjudicating what is true or false, good or bad, valid or invalid as these aspects should be left for open discussion in the public domain. This justification is also premised on the conviction that freedom of speech serves an indispensable function in democratic governance without which the citizens cannot successfully carry out the task to convey and receive ideas. Political speech relating to government policies requires greater protection for preservation and promotion of democracy. Falsity of the accusation would not be sufficient to constitute criminal offence of ‘hate speech’. The Constitutional Bench decision of this Court in Kedar Nath Singh and the subsequent decisions have clearly and uniformly held that there is difference between ‘government established by law’ and ‘persons for the time being engaged in carrying on administration’ and that comment or criticism of the government action in howsoever strong words must be protected and cannot be a ground to take penal action unless the words written or spoken, etc. have pernicious tendency or intention of creating public disorder. Without exciting those feelings which generate inclination to cause public disorder by acts of violence, political views and criticism cannot be made subject matter of penal action. Reference to later decision in Arun Ghosh drawing distinction between serious and aggravated from of breaches of public order that endanger public peace and minor breaches that do not affect public at large would be apposite. In consonance with the constitutional mandate of reasonable restriction and doctrine of proportionality in facts of each case it has to be ascertained whether the act meets the top of Clapham omnibus test and whether the act was ‘likely’ to lead to disturbance of the current life of the community so as to amount to disturbance of public order; or it may affect an individual or some individuals leaving the tranquility of the society undisturbed. The latter and acts excluded on application of the top of Clapham omnibus test are not covered. Therefore, anti-democratic speech in general and political extremist speech in particular, which has no useful purpose, if and only when in the nature of incitement to violence that ‘creates’, or is ‘likely to create’ or ‘promotes’ or is ‘likely to promote’ public disorder, would not be protected.”

To sum it up, the two Judge Bench of Apex Court  made it crystal clear in this notable judgment that people have the right to criticize government’s policy and even though it may be ethically wrong but it will not invite penal action. It also made it amply clear that government should be left out from adjudicating what is true or false, good or bad, valid or invalid as these aspects should be left for open discussion in the public domain. Very rightly so! No denying it! It is the bounden duty of all governments to always adhere to what has been laid down so explicitly, elegantly and effectively by the top court in this commendable judgment! It will certainly be the right course of action also!

Sanjeev Sirohi

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