Constitution of India – Arts. 19(1)(a), 19(2) and 32 – Penal Code, 1860 – ss. 295A, 153A, 505(2) – Hate speech – The petitioner hosted and anchored a debate on the Places of worship (Special Provisions) Act, 1991 on a news channel – While hosting the debate, the petitioner had described Pir Hazrat Moinuddin Chishti, as an invader, terrorist and robber who had come to India to convert its population to Islam – Post the telecast as many as seven FIRs concerning the said episode were filed and registered against the petitioner in the States of Rajasthan, Telangana, Maharashtra and Madhya Pradesh – It was alleged that 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 – The petitioner field writ petition and sought (a) quashing of FIRs/ complaints; (b) in alternative, transfer and club the FIRs mentioned with the First FIR, i.e. FIR at Ajmer, Rajasthan; (c) direction that no coercive process to be taken against the petitioner in the FIR and the Union of India to provide him and his family adequate safety and security – In his submissions, petitioner expressed regret and claimed that words were uttered inadvertently and by mistake – An interim order was passed by the Supreme Court that stayed further steps/action on the FIRs mentioned in the writ petition and petitioner was protected against any coercive process arising out of or relating to the said FIRs – Held: Three elements can be used to define and identify ‘hate speech’ namely- content-based element, intent-based element and harmbased element – The content-based element involves open use of words and phrases generally considered to be offensive to a particular community and objectively offensive to the society – The intent-based element of ‘hate speech’ requires the speaker’s messag to intend only to promote hatred, violence or resentment against a particular class or group without communicating any legitimate message – The harm or impact-based element refers to the consequences of the ‘hate speech’ that is to harm victim which can be violent or such as loss of self-esteem, economic or social subordination – S.295A of the Penal Code encapsulates all three elements, namely, it refers to the content-based element when it refers to words either spoken or written or by signs or visible representation – Similarly, sub-section 505 of the Penal Code refers to a person publishing or circulating any statement or report containing rumour or alarming news – In the instant case, the petitioner was equal coparticipant, 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 intent and the ‘harm/impact’ – These have to evaluated before the Court can form an opinion on whether an offence is made out – The petitioner also relies on his apology – Thus, it is not an appropriate stage to quash FIR and stall the investigation into all the relevant aspects – The interim protection granted to the petitioner against arrest subject to his joining and cooperating in investigation to continue – Further, prayer to transfer all the FIRs to police station Dargah, Ajmer, Rajasthan accepted.

Code of Criminal Procedure, 1973 – s.156(1) and s.179 – Conjoint reading of – Penal Code, 1860 – ss. 295A, 153A, 505(2) – Hate speech – Cause of Action – While hosting a debate show, the petitioner had described Pir Hazrat Moinuddin Chishti, as an invader, terrorist and robber who had come to India to convert its population to Islam – Post the telecast as many as seven FIRs concerning the said episode were filed and registered against the petitioner in the States of Rajasthan, Telangana, Maharashtra and Madhya Pradesh – Petitioner contended that criminal proceedings arising from the impugned FIRs ought to be quashed as these FIRs were registered in places where no ‘cause of action’ arose – Held: s.179 of Cr.P.C. provides that an offence is triable at the place where an act is done or its consequence ensues – The audience, including the complainants, were located in different parts of India and were affected by the utterances of the petitioner – Further, clause (1) of s.156 of Cr.P.C. provides that any officer in-charge of a police station may investigate any cognizable case which a court having jurisdiction over the local limits of such station would have the power to inquire into or try – Thus, a conjoint reading of ss.179 and 156 (1) of the Cr.P.C. make it clear that the impugned FIRs do not suffer from this jurisdictional defect. Penal Code, 1860 – s. 95 – Act causing slight harm – While hosting a debate show, the petitioner had described Pir Hazrat Moinuddin Chishti, as an invader, terrorist and robber who had come to India to convert its population to Islam – The petitioner has relied upon the decision of the Supreme Court in Veeda Menez and the decision of the High Court of Delhi in Neelam Mahajan to plead the defence of trifle u/s. 95 of the Penal Code – Held: The instant case cannot be equated with either Veeda Menez or Neelam Mahajan’s case where the factual matrix was undisputed and admitted – It would be wrong and inappropriate in the present context to prejudge and pronounce on aspects which are factual and disputed – The plea raised by the petitioner cannot be accepted without ascertaining facts and evidence

Constitution of India – Arts. 19(1)(a), 19(2) and 32 – Hate Speech – Constitutional and statutory treatment of ‘hate speech’ depends on the values sought to be promoted, perceived harm involved and the importance of these harms – Consequently, a universal definition of ‘hate speech’ remains difficult, except for one commonality that ‘incitement to violence’ is punishable. International Law – Hate Speech – The American Framework on hate speech is based on four major philosophical justifications; Justification from democracy, Social contract theory, Pursuit of the truth and Idea of autonomy – The Canadian approach emphasises on multiculturalism and group equality, as it places greater emphasis on cultural diversity and promotes the idea of ethnic mosaic – The Australian approach is substantially aligned with Canada – The South African position regards dignity as paramount constitutional value and the law and the courts are willing to subjugate freedom of expression when the latter sufficiently undermines the former – The position in the United Kingdom has shifted over the years from reinforcing the security of the government to checking incitement to racial hatred among non-target audience with the aim of protecting targets against racially motivated harassment – Germany believes that freedom of expression is one amongst several rights which is limited by principles of equality, dignity and multiculturalism – The French law gives primacy to freedom of expression, which it believes is meaningless without the right to offend, which would to some not only include the right to criticise and provoke but also the right to ridicule when it comes to ideas and beliefs, including religious beliefs. Penal Code, 1860 – s.295A – Held: Import of s.295A of the Penal Code, Ramji Lal Modi holds, is to curb speech made with ‘malicious intent’ and not ‘offensive speech’ – Criminality would not include insults to religion offered unwittingly, carelessly or without deliberate or malicious intent to outrage the religious feelings – Only aggravated form of insult to religion when it is perpetuated with deliberate and malicious intent to outrage the religious feelings of that group is punishable. Constitution of India – Art. 19 – Penal Code, 1860 – s.153A and s.505(2) – In Ramji Lal Modi and the later decision in Bilal Ahmed Kaloo, which had examined ss.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, 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 .

Words and Phrases – ‘minor breaches’ and ‘security of State’ – discuss and defined. Constitution of India – Art. 19 – ‘Dignity’ in the context of hate speech – Held: Loss of dignity and selfworth of the targeted group members contributes to disharmony amongst groups, erodes tolerance and open-mindedness which are a must for multi-cultural society committed to the idea of equality – It affects an individual as a member of a group – It is however necessary that at least two groups or communities must be involved; merely referring to feelings of one community or group without any reference to any other community or group does not attract the ‘hate speech’ definition. Constitution of India – Art. 19 – Hate speech – Dignity of individual and unity and integrity of the nation – Held: Dignity of individual and unity and integrity of the nation are linked, one in the form of rights of individuals and other in the form of individual’s obligation to others to ensure unity and integrity of the nation – The unity and integrity of the nation cannot be overlooked and slighted, as the acts that ‘promote’ or are ‘likely’ to ‘promote’ divisiveness, alienation and schematism do directly and indirectly impinge on the diversity and pluralism, and when they are with the objective and intent to cause public disorder or to demean dignity of the targeted groups, they have to be dealt with as per law – The purpose is not to curtail right to expression and speech, albeit not gloss over specific egregious threats to public disorder and in particular the unity and integrity of the nation. Constitution of India – Art. 19 – Hate speech – Analysis and definition of – Held: Three distinct elements that legislatures and courts can use to define and identify ‘hate speech’, namely – contentbased element, intent-based element and harm-based element (or impact-based element) – The content-based element involves open use of words and phrases generally considered to be offensive to a particular community and objectively offensive to the society – The intent-based element of ‘hate speech’ requires the speaker’s message to intend only to promote hatred, violence or resentment against a particular class or group without communicating any legitimate message – The harm or impact-based element refers to the consequences of the ‘hate speech’ that is to harm victim which can be violent or such as loss of self-esteem, economic or social subordination.

Constitution of India – Art. 19 – Distinction between Free speech and Hate speech – Held: 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 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. Words and Phrases – ‘Tolerance’ – discuss and defined. Penal Code, 1860 – s.153A – Held: Deliberate and malicious intent is necessary and can be gathered from the words itselfsatisfying the test of top of Clapham omnibus, the who factor person making the comment, the targeted and non targeted group, the context and occasion factor- the time and circumstances in which the words or speech was made, the state of feeling between the two communities, etc. and the proximate nexus with the protected harm to cumulatively satiate the test of ‘hate speech’ – ‘Good faith’ and ‘no legitimate purpose’ test would apply, as they are important in considering the intent factor. Penal Code, 1860 – s.153A (b) – Held: In the context of s.153A(b), public tranquillity, given the nature of the consequence in the form of punishment of imprisonment of up to three years, must be read in a restricted sense synonymous with public order and safety and not normal law and order issues that do not endanger the public – It cannot be given the widest meaning so as to fall foul of the requirement of reasonableness which is a constitutional mandate

Words and Phrases – “Attempt’ in the context of hate speech – Held: An ‘attempt to constitute a crime’, the impugned act should be more than mere preparation and reasonably proximate to the consummation of the offence, which has been interrupted – In the context of ‘hate speech’, including the offences related to promoting disharmony or feelings of enmity, hatred or ill-will, and insulting the religion or the religious beliefs, it would certainly require the actual utterance of words or something more than thought which would constitute the content. Code of Criminal Procedure, 1973 – Quashing of FIR at an early stage – The Supreme Court has at the initial stage quashed the proceedings arising out of the FIR, namely, Manzar Sayeed Khan, Mahendra Singh Dhoni, Ramesh as well as Balwant Singh – However, the ratio in Balwant Singh has to be applied with caution as the decision had proceeded on failure of prosecution.

Code of Criminal Procedure, 1973 – First Information Report (FIR) – Definition and meaning of – Held: Acronym FIR, or the First Information Report, is neither defined in the Criminal Code nor is used therein, albeit it refers to the information relating to the commission of a cognisable offence – This information, if given orally to an officer in-charge of the police station, is mandated to be reduced in writing – Information to be recorded in writing need not be necessarily by an eye-witness, and hence, cannot be rejected merely because it is hearsay – S.154 does not mandate nor is this requirement manifest from other provisions of the Criminal Code – Lalita Kumari held that s.154 of the Criminal Code, in unequivocal terms, mandates registration of FIR on receipt of all cognisable offences, subject to exceptions in which case a preliminary inquiry is required – Tapan Kumar Singh held that the FIR is not an encyclopaedia disclosing all facts and details relating to the offence. Code of Criminal Procedure, 1973 – FIR – Quashing of – FIRs registered against the petitioner for describing Pir Hazrat Moinuddin Chishti, as an invader, terrorist and robber who had come to India to convert its population to Islam – Petitioner sought quashing of FIRs – Held: The petitioner was an equal co-participant, rather than a mere host – Three distinct elements that used to define and identify ‘hate speech’, namely-content-based element, intentbased element and harm-based element (or impact-based element), need to be evaluated before the Court – These have to be evaluated, before the Court form an opinion on whether an offence is made out – Thus, it would not be appropriate at this stage to quash FIRs and stall the investigation into all the relevant aspects. Code of Criminal Procedure, 1973 – Multiple FIRs – In Babubhai v. State of Gujarat and others wherein the test to determine sameness of the FIRs has been elucidated as when the subject matter of the FIRs is the same incident, same occurrence or are in regard to incidents which are two or more parts of the same transaction – If the answer to the question is affirmative, then the second FIR need not be proceeded with. Words and Phrases – ‘ordre publique’, ‘public tranquillity’ and ‘public order’ – discussed.