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Persons Of Influence Have To Be More Responsible In Speech: SC

It is quite remarkable, refreshing and rejoicing to see that the Supreme Court has in a learned, latest, landmark and laudable judgment titled Amish Devgan vs Union of India and others in Writ Petition (Criminal) No. 160 of 2020 held explicitly, elegantly and effectively that persons of influence have to be more responsible in speech. This was held so by the Apex Court while refusing to quash the FIR against News 18 anchor Amish Devgan. Very rightly so! Persons of influence must always think before speaking something on any topic of discussion. They will themselves stand to gain from it as no one can then complain against them in any court!

To start with, this notable judgment authored by Justice Sanjiv Khanna for himself and Justice AM KHanwilkar queers the pitch in para 2 after allowing application for intervention as stated in para 1 wherein it is stated 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.”

While further disclosing the facts, it is then stated in para 3 that, “The petitioner hosts and anchors debate shows ‘Aar Paar’ on News18 India and ‘Takkar’ on CNBC Awaaz. On 15th June, 2020, at around 7:30 p.m., the petitioner had hosted and anchored a debate on the enactment [The Places of Worship (Special Provisions) Act, 1991] which, while excluding Ayodhya, prohibits conversion and provides for maintenance of the religious character of places of worship as it existed on 15th August, 1947. Some Hindu priest organisations had challenged vires of this Act before the Supreme Court, and reportedly a Muslim organization had filed a petition opposing the challenge.”

Briefly stated, it is then envisaged in para 4 that, “Post the telecast as many as seven First Information Reports (FIRs) concerning the episode were filed and registered against the petitioner in the States of Rajasthan, Telangana, Maharashtra and Madhya Pradesh.” The details of FIR are not being mentioned here due to paucity of space.

While dwelling on the FIR, it is then further pointed out in para 4 that, “The gist of the FIRs is almost identical. The petitioner, while hosting the debate, had described Pir Hazrat Moinuddin Chishti, also known as Pir Hazrat Khwaja Gareeb Nawaz, as “aakrantak Chishti aya… aakrantak Chishti aya… lootera Chishti aya… uske baad dharam badle”. Translated in English the words spoken would read – “Terrorist Chishti came. Terrorist Chishti came. Robber Chishti came – thereafter the religion changed,” imputing that ‘the Pir Hazrat Moinuddin Chishti, a terrorist and robber, had by fear and intimidation coerced Hindus to embrace Islam.’ It is alleged that the petitioner had deliberately and intentionally insulted a Pir or a pious saint belonging to the Muslim community, revered even by Hindus, and thereby hurt and incited religious hatred towards Muslims.”

While dwelling on hate speech, the Bench rightly holds in para 53 that, “Further, the law of ‘hate speech’ recognises that all speakers are entitled to ‘good faith’ and ‘(no)-legitimate purpose’ protection. ‘Good faith’ means that the conduct should display fidelity as well as a conscientious approach in honouring the values that tend to minimise insult, humiliation or intimidation. The latter being objective, whereas the former is subjective. The important requirement of ‘good faith’ is that the person must exercise prudence, caution and diligence. It requires due care to avoid or minimise consequences. ‘Good faith’ or ‘no-legitimate purpose’ exceptions would apply with greater rigour to protect any genuine academic, artistic, religious or scientific purpose, or for that matter any purpose that is in public interest, or publication of a fair and accurate report of any event or matter of public interest.99 Such works would get protection when they were not undertaken with a specific intent to cause harm. These are important and significant safeguards. They highlight importance of intention in ‘hate speech’ adjudication. ‘Hate speech’ has no redeeming or legitimate purpose other than hatred towards a particular group. A publication which contains unnecessary asides which appear to have no real purpose other than to disparage will tend to evidence that the publications were written with a mala fide intention. However, opinions may not reflect mala fide intention.”

While dwelling on when the courts should act, the Bench then very rightly observes in para 55 that, “Sometimes, difficulty may arise and the courts and authorities would have to exercise discernment and caution in deciding whether the ‘content’ is a political or policy comment, or creates or spreads hatred against the targeted group or community. This is of importance and significance as overlap is possible and principles have to be evolved to distinguish. We would refer to one example to illustrate the difference. Proponents of affirmative action and those opposing it, are perfectly and equally entitled to raise their concerns and even criticise the policies adopted even when sanctioned by a statute or meeting constitutional scrutiny, without any fear or concern that they would be prosecuted or penalised. However, penal action would be justified when the speech proceeds beyond and is of the nature which defames, stigmatises and insults the targeted group provoking violence or psychosocial hatred. The ‘content’ should reflect hate which tends to vilify, humiliate and incite hatred or violence against the target group based upon identity of the group beyond and besides the subject matter.”

For the sake of clarity, the Bench then makes it a point to clarify in para 56 that, “Our observations are not to say that persons of influence or even common people should fear the threat of reprisal and prosecution, if they discuss and speak about controversial and sensitive topics relating to religion, caste, creed, etc. Such debates and right to express one’s views is a protected and cherished right in our democracy. Participants in such discussions can express divergent and sometimes extreme views, but should not be considered as ‘hate speech’ by itself, as subscribing to such a view would stifle all legitimate discussions and debates in public domain. Many a times, such discussions and debates help in understanding different view-points and bridge the gap. Question is primarily one of intent and purpose. Accordingly, ‘good faith’ and ‘no legitimate purpose’ exceptions would apply when applicable.”

To say the least, it is then rightly underscored in para 69 that, “Dignity of citizens of all castes, creed, religion and region is best protected by the fellow citizens belonging to non-targeted groups and even targeted groups. As stated earlier, in a polity committed to pluralism, hate speech cannot conceivably contribute in any legitimate way to democracy and, in fact, repudiates the right to equality.”

As it turned out, the Bench then rightly observes in para 78 that, “We have already reproduced relevant portions of the transcript of the debate anchored by the petitioner. It is apparent that the petitioner was an equal co-participant, rather than a mere host. The transcript, including the offending portion, would form a part of the ‘content’, but any evaluation would require examination and consideration of the variable ‘context’ as well as the ‘intent’ and the ‘harm/impact’. These have to be evaluated before the court can form an opinion on whether an offence is made out. The evaluative judgment on these aspects would be based upon facts, which have to be inquired into and ascertained by police investigation. ‘Variable content’, ‘intent’ and the ‘harm/impact’ factors, as asserted on behalf of the informants and the State, are factually disputed by the petitioner. In fact, the petitioner relies upon his apology, which as per the respondents/informants is an indication or implied acceptance of his acts of commission.”

To put things in perspective, the Bench then notes in para 79 that, “Having given our careful and in-depth consideration, we do not think it would be appropriate at this stage to quash the FIRs and thus stall the investigation into all the relevant aspects. However, our observations on the factual matrix of the present case in this decision should not in any manner influence the investigation by the police who shall independently apply their mind and ascertain the true and correct facts, on all material and relevant aspects. Similarly, the competent authority would independently apply its mind in case the police authorities seek sanction, and to decide, whether or not to grant the same. Same would be the position in case charge-sheet is filed. The court would apply its mind whether or not to take cognisance and issue summons. By an interim order, the petitioner has enjoyed protection against coercive steps arising out of and relating to the program telecast on 15.06.2020. Subject to the petitioner cooperating in the investigation, we direct that no coercive steps for arrest of the petitioner need be taken by the police during investigation. In case and if charge-sheet is filed, the court would examine the question of grant of bail without being influenced by these directions as well as any findings of fact recorded in this judgment.”

Truth be told, the Bench then also candidly observes in para 85 that, “In view of our findings, we accept the prayer made in the last amended writ petition and transfer all FIRs listed at serial No. 2 to 7 in paragraph 4 (supra) to police station Dargah, Ajmer, Rajasthan, where the first FIR was registered. We do not find any good ground or special reason to transfer the FIRs to Noida, Uttar Pradesh. Statement of the complaint/informant forming the basis of the transferred FIRs would be considered as statement under Section 162 of the Criminal Code and be proceeded with. Compliance of the above directions to transfer papers would be made by the concerned police station within four weeks when they receive a copy of this order. The above directions would equally apply to any other FIR/complaint predicated on the same telecast/ episode.”

Now coming to the operative directions. It is made amply clear in the last important para 87 that, “In view of the aforesaid discussion, we decline and reject the prayer of the petitioner for quashing of the FIRs but have granted interim protection to the petitioner against arrest subject to his joining and cooperating in investigation till completion of the investigation in terms of our directions in paragraphs 79 and 85 above. We have however accepted the prayer of the petitioner for transfer of all pending FIRs in relation to and arising out of the telecast/episode dated 15th June 2020 to P.S. Dargah, Ajmer, Rajasthan, where the first FIR was registered. On the third prayer, we have asked the concerned states to examine the threat perception of the petitioner and family members and take appropriate steps as may be necessary.”

In sum, the crux of this noteworthy judgment is as stated in this judgment itself and the relevant parts are stated here. It is rightly pointed out that, “Persons of influence, keeping in view their reach, impact and authority they yield on general public or the specific class to which they belong, owe a duty and have to be more responsible.” As discussed earlier, Amish Devgan had approached the top court seeking to quash the multip0le FIRs registered for offences under Section 153A/295A of the Indian Penal Code over his remarks on Sufi Saint Moinuddin Chishti. He apologized also but the damage had been done.

While rejecting the plea to quash the FIR lodged against Amish Devgan, the Apex Court delved into the concept of hate speech as discussed above. It is also rightly pointed out in this judgment that, “They are expected to know and perceive the meaning conveyed by the words spoken or written, including the possible meaning that is likely to be conveyed. With experience and knowledge, they are expected to have a higher level of communication skills. It is reasonable to hold that they would be careful in using the words that convey their intent. The reasonable-man’s test would always take into consideration the maker. In other words, the expression ‘reasonable man’ would take into account the impact a particular person would have and accordingly apply the standard, just like we substitute the reasonable man’s test to that of the reasonable professional when we apply the test of professional negligence.” We all must keep this in mind always and not just Amish Devgan alone! It will be in our own best interest also! Rightly said! There certainly can be no denying or disputing it!

Sanjeev Sirohi

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