The Bombay High Court on 5th May, 2021 comprising of a bench of Justices SS Shinde and MS Karnik while quashing an FIR pertaining to a tweet with alleged communal shades to it remarked that merely because the petitioner’s point of view seems extreme, the same does not amount to making a hate speech. (Sunaina Holey vs State of Maharashtra)
The Bench held that the tweet in question seems to be a hostile point of view, if judged from the point of reasonable and strong minded person point of view.
The Court said, "State’s approach towards the tweet is hypersensitive and over cautious thereby trying to scent danger in the hostile point of view expressed by Holey."
The Court further observed,
“The right to express one’s views is a protected and cherished right in our democracy. Merely because the point of view of the Petitioner is extreme or harsh will not make it a hate speech as it is only expressing a different point of view.”
Facts of the case
Holey was booked u/s 153A (promoting enmity between different groups on the grounds of religion) of the IPC for posting a video along with a comment on migrant workers gathered outside Bandra Masjid, in Mumbai, at the peak of the nationwide lockdown on April 14, 2020.
In the video, a man shouted that Covid - 19 pandemic is not an act of God but has been brought by India's prime minister.
The present petition was filed under Article 226 of the Constitution of India read with section 482 of the Code of Criminal Procedure, for quashing the FIR.
Contention of the parties
The counsel for the petitioner, Abhinav Chandrachud contended that the ingredients for constituting an offence under Section 153A (Promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and acts prejudicial to maintenance of harmony) IPC are not made out. He further contended that she is not the author of the video and merely referred to it.
The respondents argued that from the tweet made by the Petitioner, it becomes explicitly clear that she has deliberately distorted facts. The petitioner claimed in her tweet that the entire crowd was blaming the Hon’ble Prime Minister whereas if the video is seen it becomes extremely difficult to ascertain as to who amongst the crowd said his name. He urged that the Petitioner has deliberately amplified the weakened voice of a single individual and has projected in her tweet that the entire crowd is shouting the name of the Prime Minister.
Court's Observation and judgment
The Court from a bare reading of the contents of the tweet noted that neither any community nor any religion was named. Further, nothing substantial has been brought on record by the prosecution to hold that because of the said tweet, hatred or enmity was created between two communities.
The bench stated, “If the test of a strong or a prudent person judging the contents of the said tweet is applied, by no stretch of imagination it can be said that the said tweet created hatred or enmity between the two groups of communities.”
From the documents before it, the Court noted that Holey was not the author of the video and that there was no offence registered against the actual author of the video. Her repost and statement in the post was an expression of her opinion criticising the member in the crowd who blamed Prime Minister Narendra Modi for the outbreak of the COVID-19 pandemic, and merely a disapproval to the viewpoint.
The Court held, “Assuming that the said tweet is an extreme view expressed in retaliation to the view expressed by one of the member of the crowd who was blaming the Prime Minister of India for the outbreak of the pandemic, the said tweet has still to be judged from the standpoint of what the reaction of a strong minded, reasonable or a prudent person would be.”
If the test of a strong or a prudent person judging the contents of the said tweet is applied, by no stretch of imagination it can be said that the said tweet created hatred or enmity between the two groups of communities. Upon reading of the contents of the said tweet, it is difficult to arrive at the conclusion that the Petitioner has mens rea to commit alleged offence under section 153A of the IPC.
The bench observed, while State's concern to control the situation was "justified," registering the FIR against Holey on the apprehension that the same may lead to promoting hatred or enmity between different groups on the ground of religion or that she has committed an act which is prejudicial to the maintenance of harmony between different religious groups, is too far fetched and remote.
The Bench held that the tweet in question seems to be a hostile point of view, if judged from the point of reasonable and strong minded person point of view.
The court made some inferences from the cases cited by the petitioner as well as respondent, some of which are mentioned below:
- A citizen or even an influential person is under no obligation to avoid a controversial or sensitive topic. Even expressing an extreme opinion in a given case does not amount to hate speech. (Amish Devgan Vs. Union on India.)
- It is not an absolute proposition that one must wait for the investigation to be completed before quashing FIR under Section 482 of Cr.PC as the same would depend upon the facts and circumstances of each case. ( Manzar Sayyed Khan & State of Haryana Vs. Bhajan Lal)
- The intention of the accused must be judged on the basis of the words used by the accused along with surrounding circumstances. (Manzar Sayyed Khan's case)
- The statement in question on the basis of which the FIR has been registered against the accused must be judged on the basis of what reasonable and strong-minded persons will think of the statement, and not on the basis of the views of hypersensitive persons who scent danger in every hostile point of view. (Manzar Sayyed Khan's case)
- In order to constitute an offence under Section 153A of the IPC, two communities must be involved. Merely inciting the feeling of one community or group without any reference to any other community or group cannot attract either Section 153A. ( Bilal Ahmad Kaloo Vs. State of A.P)
- The intention to cause disorder or incite people to violence is the sine qua non of the offence under Section 153A of IPC and prosecution has to prove prima facie the existence of mens rea on the part of the accused. (Balwant Singh Vs. State of Punjab)
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