Supreme Court clarifies limits of free speech, hate speech, and multiple FIRs in media broadcasts: Amish Devgan vs. Union of India (7 December 2020)

Introduction

Date of the Judgment: 7 December 2020

Citation: (2020) INSC 955

Judges: A.M. Khanwilkar, J. and Sanjiv Khanna, J.

Can a news anchor’s statements during a live debate, which are deemed offensive by some, justify multiple criminal cases across different states? The Supreme Court of India grappled with this question in the case of Amish Devgan vs. Union of India, addressing the critical intersection of free speech, hate speech, and the legal implications of media broadcasts. The core issue revolved around whether a news anchor’s remarks during a debate program constituted hate speech and whether multiple FIRs could be filed for the same incident. The judgment was delivered by a two-judge bench comprising Justices A.M. Khanwilkar and Sanjiv Khanna.

Case Background

The petitioner, Amish Devgan, a journalist and managing director of several news channels, hosted a debate on the Places of Worship (Special Provisions) Act, 1991, on June 15, 2020. During the debate, he referred to Pir Hazrat Moinuddin Chishti using derogatory terms, calling him a “terrorist” and “robber.” Following the broadcast, seven First Information Reports (FIRs) were filed against Devgan in Rajasthan, Telangana, Maharashtra, and Madhya Pradesh. The FIRs alleged that Devgan had deliberately insulted a revered Muslim saint, thereby inciting religious hatred towards Muslims. Devgan claimed that the remarks were made inadvertently, and he issued a clarification and apology via Twitter and a video broadcast on his channel.

Timeline

Course of Proceedings

The judgment does not provide details of lower court proceedings. The case directly reached the Supreme Court as a writ petition under Article 32 of the Constitution.

Legal Framework

The Supreme Court considered the following legal provisions:

• Section 153A of the Indian Penal Code, 1860: This section penalizes promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony.

“153A. Promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony.— (1) Whoever— (a) by words, either spoken or written, or by signs or by visible representations or otherwise, promotes or attempts to promote, on grounds of religion, race, place of birth, residence, language, caste or community or any other ground whatsoever, disharmony or feelings of enmity, hatred or ill-will between different religious, racial, language or regional groups or castes or communities, or (b) commits any act which is prejudicial to the maintenance of harmony between different religious, racial, language or regional groups or castes or communities, and which disturbs or is likely to disturb the public tranquillity, or (c) organises any exercise, movement, drill or other similar activity intending that the participants in such activity shall use or be trained to use criminal force or violence or knowing it to be likely that the participants in such activity will use or be trained to use criminal force or violence, or participates in such activity intending to use or be trained to use criminal force or violence or knowing it to be likely that the participants in such activity will use or be trained to use criminal force or violence, against any religious, racial, language or regional group or caste or community and such activity, for any reason whatsoever causes or is likely to cause fear or alarm or a feeling of insecurity amongst members of such religious, racial, language or regional group or caste or community, shall be punished with imprisonment which may extend to three years, or with fine, or with both. Offence committed in place of worship, etc.— (2) 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 of the Indian Penal Code, 1860: This section penalizes deliberate and malicious acts intended to outrage religious feelings of any class by insulting its religion or religious beliefs.

“295-A. 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 three years, or with fine, or with both.”

• Section 505(2) of the Indian Penal Code, 1860: This section penalizes statements creating or promoting enmity, hatred, or ill-will between classes.

“505. Statements conducing to public mischief.— (2) Statements creating or promoting enmity, hatred or ill-will between classes.— Whoever makes, publishes or circulates any statement or report containing rumour 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.”

• Section 66F of the Information Technology Act, 2000: This section deals with cyber terrorism, but was not a central focus of the court’s analysis.

The Court examined these provisions in light of Article 19(1)(a) of the Constitution, which guarantees freedom of speech and expression, and Article 19(2), which allows for reasonable restrictions on this freedom in the interest of public order, among other things.

Arguments

Petitioner’s Submissions:

• ✓ Multiple FIRs for the same incident are an abuse of law, violating fundamental rights and freedom of the press, causing a chilling effect on free speech.
• ✓ The FIRs are meant to harass and intimidate the petitioner; no part of the cause of action arose in the areas where the FIRs were lodged.
• ✓ On interpreting Sections 153A, 295A, and 505(2) of the Indian Penal Code, 1860, and Section 66-F of the Information Technology Act, 2000, no offense is made out. The allegations are based on isolated words, not the program as a whole.
• ✓ The petitioner did not have malicious intent (mens rea) to outrage religious beliefs and feelings. The program should be judged from the standard of a reasonable person.
• ✓ Alternatively, a case of minor harm is made out, covered by Section 95 of the Indian Penal Code, 1860.
• ✓ All FIRs should be clubbed and transferred to Noida or Delhi.

Respondents’ Submissions:

• ✓ The petition should be dismissed as Article 32 was invoked improperly, given the availability of remedies under Section 482 of the Criminal Code.
• ✓ The petitioner uttered the offending words thrice, demonstrating ill intention to create disharmony and incite disorder.
• ✓ The debate was a staged program to malign Muslims and promote hatred; no experts or historians were on the panel.
• ✓ The themes of the programs hosted by the Petitioner are communal.
• ✓ The petitioner’s conduct violated journalistic standards.
• ✓ The petitioner uploaded an edited version of the video on YouTube, removing offensive speech, attempting to tamper with evidence.
• ✓ The petitioner’s claim of mistakenly saying “Chishti” instead of “Khilji” is false, as the two historical figures are unrelated.
• ✓ The apology was an afterthought, only issued after the FIR was registered.
• ✓ The two persons who purportedly forgave the petitioner are TV personalities and do not represent the devotees of Khwaja Chishti.
• ✓ An FIR need not be an encyclopedia; material facts are sufficient to continue criminal proceedings.
• ✓ Communal elements used the broadcast to spread hatred.
• ✓ Article 19(1)(a) is subject to limitations under Article 19(2).
• ✓ The police should be allowed to file a report under Section 173 of the Criminal Code, and the court should frame charges.
• ✓ Section 19 of the Cable TV (Regulation) Act prohibits content promoting hate.
• ✓ Cause of action arose in Ajmer, where the intervener resides and serves as khadim to the Dargah of Khwaja Chishti.
• ✓ Apology by the petitioner would not dilute the offence.
• ✓ Allegations and counter-allegations of facts are a matter of trial.
• ✓ Normal course of investigation cannot be cut short.

Submissions Categorized by Main Submissions:

Issues Framed by the Supreme Court

The Supreme Court framed the following issues for consideration:

1. Whether the FIRs should be quashed?
2. Whether the FIRs were registered in places where no ‘cause of action’ arose?
3. Whether the defense of causing slight harm under Section 95 of the Indian Penal Code, 1860 is applicable?
4. Whether the speech constitutes ‘hate speech’?
5. Whether multiple FIRs arising out of the same incident are valid?
6. Whether all the FIRs should be clubbed and transferred to the first FIR registered at P.S. Dargah, Ajmer, Rajasthan?
7. Whether the Union of India should provide adequate safety and security to the petitioner?

Treatment of the Issue by the Court

The following table demonstrates as to how the Court decided the issues:

Authorities

The Supreme Court considered the following authorities:

Judgment

How each submission made by the Parties was treated by the Court?

How each authority was viewed by the Court?

• Arnab Ranjan Goswami v. Union of India and Others: Followed on the principle that subsequent FIRs for the same incident are not permissible.
• Balwant Singh and Another v. State of Punjab: Relied on the principle that mens rea is an essential ingredient of the offense.
• Bhagwati Charan Shukla s/o. Ravishankar Shukla v. Provincial Government, C.P. & Berar: Cited for principles on interpreting legal provisions.
• Bilal Ahmed Kaloo v. State of A.P.: Cited for interpretation of Sections 153A and 505(2), Indian Penal Code, 1860, and the requirement of at least two groups or communities being involved.
• Brij Bhushan and Another v. State of Delhi: Cited for the principle that freedom of speech is not absolute.
• Devi Sharan Sharma v. Emperor: Cited for the principle that intention can be deduced from the words and context.
• Emperor v. Sadashiv Narayan Bhalerao: Cited for principles on interpreting legal provisions.
• Gopal Vinayak Godse v. Union of India: Cited for the principle that intention to promote enmity is not a necessary ingredient of the offense.
• Her Majesty the Queen v. James Keegstra: Cited for principles on the impact of hate speech on targeted groups.
• Niharendu Dutt Majumdar v. The King-Emperor: Cited for principles on interpreting legal provisions.
• K.A. Abbas v. Union of India and Another: Cited for principles on the freedom of speech in artistic expression.
• Kedar Nath Singh v. State of Bihar: Cited for the interpretation of Sections 124A and 505, Indian Penal Code, 1860, and the concept of public order.
• Lalai Singh Yadav v. State of Uttar Pradesh: Cited for the principle that rational criticism of religious tenets is not an offense.
• Lalita Kumari v. Government of Uttar Pradesh and Others: Cited for the mandatory registration of FIRs in cognizable offenses.
• Mahendra Singh Dhoni v. Yerraguntla Shyamsundar and Another: Cited for the principle that Section 295A, Indian Penal Code, 1860 should not be applied to farfetched interpretations.
• Manzar Sayeed Khan v. State of Maharashtra and Another: Cited for the requirement of intent to promote enmity between groups under Section 153A, Indian Penal Code, 1860.
• P.K. Chakravarty v. The King: Cited for the principle that intention is to be collected from the internal evidence of the words themselves.
• Pravasi Bhalai Sangathan v. Union of India and Others: Cited for the Law Commission of India’s recommendations on hate speech.
• Queen-Empress v. Bal Gangadhar Tilak: Cited for principles on interpreting legal provisions.
• R. v. Zundel: Cited for the principle that publishing false news that is known to be false is likely to cause injury to public interest and multiculturalism.
• R. P. Kapur v. State of Punjab: Cited for the principle that the High Court can quash proceedings to prevent abuse of process.
• Ramesh S/o Chhotalal Dalal v. Union of India and Others: Cited for the principle that the effect of words must be judged from the standard of a reasonable person.
• Ramji Lal Modi v. State of U.P.: Cited for the constitutional validity of Section 295A and its interpretation.
• Romesh Thappar v. State of Madras: Cited for the principle that freedom of speech is not absolute.
• Saskatchewan (Human Rights Commission) v. Whatcott: Cited for tests to determine whether an expression qualifies as hate speech.
• Shreya Singhal v. Union of India: Cited for the distinction between discussion, advocacy, and incitement.
• State of Bihar and Another v. P.P. Sharma, IAS and Another: Cited for the principle that the High Court can quash proceedings to prevent abuse of process.
• State of H.P. v. Pirthi Chand and Another: Cited for the principle that the High Court can quash proceedings to prevent abuse of process.
• State of Haryana v. Bhajan Lal: Cited for the principle that the High Court can quash proceedings to prevent abuse of process.
• State of U.P. v. O.P. Sharma: Cited for the principle that the High Court can quash proceedings to prevent abuse of process.
• Veeda Menez v. Yusuf Khan and Another: Cited for the defense of trifle under Section 95.
• Neelam Mahajan v. Commissioner of Police and Others: Cited for the defense of trifle under Section 95.
• Superintendent of Police, CBI and Others v. Tapan Kumar Singh: Cited for the principle that an FIR is not an encyclopedia.
• Superintendent, Central Prison, Fatehgarh and Another v. Dr. Ram Manohar Lohia: Cited for the interpretation of public order and its relation to freedom of speech.
• T.T. Antony v. State of Kerala and Others: Cited for the principle that only the first FIR is valid for the same incident.
• Virendra/ K.Narendra v. State of Punjab and Another: Cited for the principle that freedom of speech is not absolute.

Key Findings

The Supreme Court made several key findings:

• ✓ Limitations of Free Speech: The Court reiterated that freedom of speech is not absolute and is subject to reasonable restrictions under Article 19(2) of the Constitution, particularly when it comes to maintaining public order and preventing hate speech.
• ✓ Hate Speech: The Court discussed the concept of hate speech, drawing from international jurisprudence and the Law Commission of India’s recommendations. It highlighted that hate speech is not just offensive speech but involves the intent to incite violence or hatred against a particular group. However, the Court did not conclusively determine whether the petitioner’s speech constituted hate speech, leaving it for the investigating authorities.
• ✓ Multiple FIRs: The Court ruled that multiple FIRs for the same incident are not permissible. Only the first FIR registered is valid, and subsequent FIRs are to be treated as statements under Section 162 of the Criminal Code. This ruling is a significant protection against harassment and abuse of the legal process.
• ✓ Transfer of FIRs: To avoid multiplicity of proceedings, the Court directed that all FIRs be transferred to the police station where the first FIR was registered.
• ✓ Investigation: The Court emphasized that factual disputes and the determination of intent require a thorough investigation by the police. The Court refrained from making any conclusive findings on the merits of the case at this stage.

Flowchart of Decision-Making

Impact of the Judgment

The judgment has significant implications for media ethics, free speech, and the legal system:

• ✓ Media Responsibility: The judgment underscores the responsibility of media houses and journalists to exercise their freedom of speech with caution and sensitivity. It highlights the need for fact-checking and responsible reporting, especially in debates on sensitive topics.
• ✓ Protection of Free Speech: By limiting the filing of multiple FIRs for the same incident, the judgment protects journalists and media outlets from harassment and intimidation. It prevents the chilling effect of multiple legal proceedings on freedom of expression.
• ✓ Clarity on Hate Speech: While the Court did not conclusively define hate speech in this specific case, it provided a comprehensive analysis of the concept, drawing from international and national jurisprudence. This analysis will guide future cases and discussions on hate speech.
• ✓ Streamlining Legal Process: The direction to transfer all FIRs to the police station where the first FIR was registered streamlines the legal process, avoiding multiplicity of proceedings and ensuring a more efficient investigation.
• ✓ Balancing Rights: The judgment demonstrates the Court’s efforts to strike a balance between the right to free speech and the need to maintain public order and prevent hate speech.

Sentiment Analysis

The sentiment of the Supreme Court judgment can be categorized as follows:

Conclusion

The Amish Devgan vs. Union of India case is a landmark judgment that clarifies the boundaries of free speech, hate speech, and the legal implications of media broadcasts in India. The Supreme Court’s ruling on multiple FIRs is a significant safeguard for freedom of expression, preventing the abuse of legal processes to harass journalists and media outlets. The Court’s analysis of hate speech provides valuable guidance for future cases, emphasizing the need to balance freedom of speech with the imperative to maintain public order and prevent the incitement of violence or hatred. The judgment underscores the responsibility of the media to exercise their freedom with caution and sensitivity, highlighting the need for fact-checking and responsible reporting. This case will continue to be a reference point for discussions on media ethics, free speech, and the legal system in India.