PATRICIA MUKHIM versus STATE OF MEGHALAYA & ORS. on 25 March 2021

[2021] 7 S.C.R. 65

PATRICIA MUKHIM

v.

STATE OF MEGHALAYA & ORS.

(Criminal Appeal No. 141 of 2021)

MARCH 25, 2021

[L. NAGESWARA RAO AND S. RAVINDRA BHAT, JJ.]

Penal Code, 1860 – ss.153A and 505(1)(c) – Brutal attackon non-tribals in State of Meghalaya with iron rods and sticks –Attackers allegedly belonged to tribal community of Meghalaya –Facebook post uploaded by Appellant, alleged to be intentionallymade for promoting class / community hatred between tribals andnon-tribals in the State – Prima facie case made out u/ss.153A and505(1)(c) or not – Held: Close scrutiny of the Facebook postuploaded by appellant indicate that her agony was directed againstthe apathy shown by the CM, Meghalaya, DGP and theDorbarShnong of the area in not taking any action against theculprits who attacked the non-tribals – The Facebook post read inits entirety pleads for equality of non-tribals in the State ofMeghalaya – There was no intention on the part of the Appellant topromote class / community hatred – As no attempt was made by theAppellant to incite people belonging to a community to indulge inany violence, the basic ingredients of offence u/ss.153A and505(1)(c) not made out – Fervent plea made by Appellant forprotection of non-tribals living in the State of Meghalaya and fortheir equality cannot, by any stretch of imagination, be categorizedas hate speech – It was a call for justice - for action according tolaw, which every citizen has a right to expect and articulate –Disapprobation of governmental inaction cannot be branded as anattempt to promote hatred between different communities – Freespeech of the citizens cannot be stifled by implicating them in criminalcases, unless such speech has the tendency to affect public order –No case made out against Appellant for offences u/ss.153A and505(1)(c).

Penal Code, 1860 – s.153A – Speech crime – Restrictions onfreedom of speech and expression – Held: Freedom of speech andexpression guaranteed by Art.19(1)(a) of the Constitution is a very

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Avaluable fundamental right – However, the right is not absolute –Reasonable restrictions can be placed on the right of free speech andexpression in the interest of sovereignty and integrity of India,security of the State, friendly relations with foreign States, publicorder, decency or morality or in relation to contempt of Court,defamation or incitement to an offence – Speech crime is punishableBu/s.153A – Constitution of India, 1950 – Art.19(1)(a) – Hate Speech.

Penal Code, 1860 – s.153A – Ambit of – Explained – Held:The intention to cause disorder or incite people to violence is sinequa non of the offence u/s. 153A and the prosecution has to provethe existence of mens rea in order to succeed – Intention has to beCjudged primarily by the language of the piece of writing and thecircumstances in which it was written and published – However, thematter complained of within the ambit of s.153A must be read as awhole.

Penal Code, 1860 – ss.153A & 505 – Ingredients of s.153ADvis-a-vis that of s.505(2) – Similarities and difference between thetwo offences – Held: Mens rea is a necessary ingredient for offenceu/s.153A and s.505(2) – Common factor of both the sections beingpromotion of feelings of enmity, hatred or ill will between differentreligious or racial or linguistics or religious groups or castes orEcommunities, it is necessary that at least two such groups orcommunities should be involved – Merely inciting the feelings ofone community or group without any reference to any othercommunity or group cannot attract any of the two sections –However, publication of words or representation is sine qua non u/s.505 – Hate Speech.F

FIR – Quashing of – Held: Where allegations made in theFIR or the complaint, even if they are taken on their face value andaccepted in their entirety do not prima facie constitute any offenceor make out a case against the accused, the FIR is liable to bequashed.G

Allowing the appeal, the Court

Conclusion

HELD : 1.1. Freedom of speech and expression guaranteedby Article 19(1)(a) of the Constitution is a very valuablefundamental right. However, the right is not absolute. Reasonable H

restrictions can be placed on the right of free speech andexpression in the interest of sovereignty and integrity of India,security of the State, friendly relations with foreign States, publicorder, decency or morality or in relation to contempt of Court,defamation or incitement to an offence. Speech crime ispunishable under s.153A IPC. [Para 8][72-C-D]

1.2. However, the intention to cause disorder or incitepeople to violence is the sine qua non of the offence under s.153A IPC and the prosecution has to prove the existence of mensrea in order to succeed. The gist of the offence under s. 153AIPC is the intention to promote feelings of enmity or hatredbetween different classes of people. Intention has to be judgedprimarily by the language of the piece of writing and thecircumstances in which it was written and published. The mattercomplained of within the ambit of s.153A must be read as a whole.One cannot rely on strongly worded and isolated passages forproving the charge nor indeed can one take a sentence here anda sentence there and connect them by a meticulous process ofinferential reasoning. [Paras 9, 10][73-H; 74-A-C]

1.3. Mens rea has been held to be a necessary ingredientfor the offence under s.153A and s.505(2) IPC. The common factorof both the sections being promotion of feelings of enmity, hatredor ill will between different religious or racial or linguistics orreligious groups or castes or communities, it is necessary that atleast two such groups or communities should be involved. Merelyinciting the feelings of one community or group without anyreference to any other community or group cannot attract any ofthe two sections. However, publication of words or representationis sine qua non under Section 505. [Para 11][74-D-F]

2. A close scrutiny of the Facebook post uploaded by theAppellant would indicate that the agony of the Appellant was directedagainst the apathy shown by the CM, Meghalaya, DGP and theDorbarShnong of the area in not taking any action against theculprits who attacked the non-tribals. At the most, the Facebookpost can be understood to highlight the discrimination against non-tribals in the State of Meghalaya. The Appellant made it clear that AB

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Acriminal elements have no community and immediate action hasto be taken against persons who had indulged in the brutal attackon non-tribal youngsters playing basketball. The Facebook postread in its entirety pleads for equality of non-tribals in the Stateof Meghalaya. There was no intention on the part of the Appellantto promote class / community hatred. As there is no attempt madeBby the Appellant to incite people belonging to a community toindulge in any violence, the basic ingredients of the offence underSections 153A and 505(1)(c) IPC have not been made out. Whereallegations made in the FIR or the complaint, even if they aretaken on their face value and accepted in their entirety do notCprima facie constitute any offence or make out a case against theaccused, the FIR is liable to be quashed. [Para 13][75-E-H;76-A-B]

3. The complaint made by the Dorbar Shnong, Lawsohtunthat the statement of the Appellant would incite communal tensionDand might instigate a communal conflict in the entire State is only afigment of imagination. The fervent plea made by the Appellant forprotection of non-tribals living in the State of Meghalaya and fortheir equality cannot, by any stretch of imagination, be categorizedas hate speech. It was a call for justice - for action according to law,which every citizen has a right to expect and articulate.EDisapprobation of governmental inaction cannot be branded as anattempt to promote hatred between different communities. Freespeech of the citizens of this country cannot be stifled by implicatingthem in criminal cases, unless such speech has the tendency to affectpublic order. No case is made out against the Appellant for an offenceFunder Section 153 A and 505(1)(c) IPC. [Para 15][76-E-H; 77-A]

Balwant Singh v. State of Punjab, (1995) 3 SCC 214;Manzar Sayeed Khan v. State of Maharashtra, (2007) 5SCC 1; Bilal Ahmed Kaloo v. State of A.P.(1997) 7 SCC431: [1997] 3 Suppl. SCR 327 and State of Haryana &GOrs. v. Bhajan Lal & Ors., 1992 Supp (1) SCC 335: [1990]3 Suppl. SCR 259 – relied on.

Ramesh v. Union of India (1988) 1 SCC 668: [1988] 2SCR 1011; and Pravasi Bhalai Sangathan v. Union of India& Ors. (2014) 11 SCC 477: [2014] 4 SCR 446 –referred to.H

Saskatchewan (Human Rights Commission) v. Whatcott[2013] 1 SCR 467 (Decision of Canadian Supreme Court)– referred to.

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CRIMINAL APPELLATE JURISDICTION: Criminal AppealNo. 141 of 2021

From the Judgment and Order dated 10.11.2020 passed in Crl.Petn. No. 9 of 2020 of the High Court of Meghalaya at Shillong.

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Ms. Vrinda Grover, Aakarsh Kamra, Soutik Banerjee, PrasannaS., Advs. for the Appellant.

Avijit Mani Tripathi, Shaurya Sahay, P.S. Negi, Advs. for theRespondents.

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The Judgment of the Court was delivered by

L. NAGESWARA RAO, J.

1. This Appeal is filed against the rejection of an application filedby the Appellant under Section 482 of the Code of Criminal Procedure,1973 for quashing FIR Laban PS Case No.72(7)2020 dated 06.07.2020registered under Sections 153 A, 500 and 505 (1) (c) of the Indian PenalCode, 1860.

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2. A press release was issued by the Assistant Inspector Generalof Police (A) on 04.07.2020 in which there was a reference to an incidenton the day prior. The incident had led to registration of a crime at LabanPolice Station under Sections 326/307/506/34 IPC. It was mentioned inthe press release that around 12:30 pm, about 25 unidentified boys hadassaulted youngsters playing basketball in Block 4, Lawsohtun with ironrods and sticks. Arindam Deb, Subharashi Das Paspurkayastha, Saptarshi G

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ADas Purkayashta, Binak Deb, Bishal Ghosh and Prittish Deb hadsustained injuries in the incident. The injured had been rushed to WoodlandHospital for medical assistance. It was stated in the press release thatsome suspects had already been arrested and that interrogation was inprogress. An appeal was made to the public to assist the investigationteam in identifying the perpetrators of the crime. A warning was givenBthat nobody should breach communal peace and harmony.

3. On the same day, the Appellant uploaded a post on Facebook,which reads as follows:

Patricia MukhimC4 July at 04:07. Facebook for Android Conrad Sangma CM Meghalaya, what happened yesterdayat Lawsohtun where some Non-Tribal youth playing Basketballwere assaulted with lethal weapons and are now in Hospital,is unacceptable in a state with a Government and a functionalDPolice Force. The attackers allegedly tribal boys with maskson and should be immediately booked. This continued attackof Non-Tribals in Meghalaya whose ancestors have lived herefor decades, some having come here since the British periodis reprehensible to say the least. The fact that such attackerEand trouble mongers since 1979 have never been arrestedand if arrested never penalized according to law suggeststhat Meghalaya has been a failed State for a long time now.

We request your government and the police force under thepresent DGP, R. Chandranathan, to take this matter with theFseriousness it deserves. Show us the public that we have apolice force we can look up to.

And what about the Dorbar Shnong of the area? Don’t theyhave their eyes and ears to the ground? Don’t they know thecriminal elements in their jurisdiction? Should they not leadthe charge and identify those murderous elements? This is thetime to rise above community interests, caste and creed andcall out for justice.

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We hope that this will not be yet another case lost in the Policefiles. We want action. Criminal elements have no community.They must be dealt with as per the law of the land.

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Why should our Non-Tribal brethren continue to live inperpetual fear in their own state? Those born and broughtup here have as much right to call Meghalaya their State asthe indigenous Tribal does. Period.

4. On 06.07.2020, the Headman and the Secretary, Dorbar Shnong,Lawsohtun, Shillong filed a complaint with the Superintendent of Police,East Khasi Hills, Shillong, Meghalaya that the statement made by theAppellant on Facebook incited communal tension which might instigatea communal conflict. The Dorbar Shnong also complained of defamation.Acting on the said complaint, FIR was registered at Laban Police Stationand notice was issued to the Appellant under Section 41 A Cr. PC, directingher to appear before the Kench’s Trace Police Beat House under LabanPolice Station, District East Khasi Hills Shillong, Meghalaya.

5. The Appellant filed Criminal Petition No. 9 of 2020 in the HighCourt of Meghalaya at Shillong for quashing the FIR. The High Court byits judgment dated 10.11.2020 dismissed the Criminal Petition No. 9 of2020, the legality of which is challenged in this Appeal. The High Courtwas of the opinion that reference to the attack on the non-tribals in theState of Meghalaya by the tribals has propensity to cause a rift betweentwo communities. Observing that the Facebook post sought to arousefeelings of enmity and hatred between two communities, the High Courtheld prima facie an offence under Section 153 A IPC was made out.

6. We have heard Ms. Vrinda Grover, learned counsel for theAppellant and Mr. Avijit Mani Tripathi, learned counsel for the State ofMeghalaya. The contention of the Appellant was that ingredients of theoffence under Section 153 A IPC have not been made out and the FIRregistered against the Appellant deserves to be quashed. It was urged onbehalf of the Appellant that the Facebook post should be read in itsentirety. The brutal attack on non-tribals was highlighted calling for suitableaction against the culprits. It was submitted on behalf of the Appellantthat there was no intention to promote any feeling of enmity or hatredbetween two communities. Reliance was placed on judgments of thisCourt to argue that the comment made by the Appellant should be judgedfrom the stand point of a reasonable, strong minded and courageousman. The Appellant asserted her right guaranteed under Article 19 (1) (a)of the Constitution of India. She voiced her concern about the criminalprosecution resulting in a chilling effect on her fundamental right to freespeech.

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A7. The learned counsel for the Respondent-State argued that theAppellant is a renowned journalist and is expected to be more responsiblewhen making public comments. The learned counsel for the Statesubmitted that the comment of the Appellant has the tendency of provokingcommunal disharmony. He submitted that the High Court was right indismissing the application filed under Section 482 Cr. PC and requestedBthis Court to not interfere as the investigation is in progress.

8. “It is of utmost importance to keep all speech free in orderfor the truth to emerge and have a civil society.” - Thomas Jefferson.Freedom of speech and expression guaranteed by Article 19 (1) (a) ofthe Constitution is a very valuable fundamental right. However, the rightCis not absolute. Reasonable restrictions can be placed on the right offree speech and expression in the interest of sovereignty and integrity ofIndia, security of the State, friendly relations with foreign States, publicorder, decency or morality or in relation to contempt of Court, defamationor incitement to an offence. Speech crime is punishable under SectionD153 A IPC. Promotion of enmity between different groups on groundsof religion, race, place of birth, residence, language etc. and doing actsprejudicial to maintenance of harmony is punishable with imprisonmentwhich may extend to three years or with fine or with both under Section153 A. As we are called upon to decide whether a prima facie case ismade out against the Appellant for committing offences under SectionsE153 A and 505 (1) (c), it is relevant to reproduce the provisions whichare as follows:

153A. Promoting enmity between different groups ongrounds of religion, race, place of birth, residence,language, etc., and doing acts prejudicial to maintenance ofFharmony. —

(1) Whoever—

(a) by words, either spoken or written, or by signs or by visiblerepresentations or otherwise, promotes or attempts to promote,Gon grounds of religion, race, place of birth, residence, language,caste or community or any other ground whatsoever, disharmonyor feelings of enmity, hatred or ill-will between different reli-gious,racial, language or regional groups or castes or communi-ties, or (b) commits any act which is prejudicial to the maintenance ofHharmony between different religious, racial, language or regional groups or castes or communities, and which disturbs or is likely todisturb the public tranquility, or A

(c) organizes any exercise, movement, drill or other similar activityintending that the participants in such activity shall use or be trainedto use criminal force or violence or knowing it to be likely that theparticipants in such activity will use or be trained to use criminalforce or violence, or participates in such activity intending to useor be trained to use criminal force or violence or knowing it to belikely that the partici-pants in such activity will use or be trained touse criminal force or violence, against any religious, racial, languageor regional group or caste or community and such activity for anyreason whatsoever causes or is likely to cause fear or alarm or afeeling of insecurity amongst members of such religious, racial,language or regional group or caste or community, shall be punishedwith imprisonment which may extend to three years, or with fine,or with both.

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Offence committed in place of worship, etc.— (2) Whoevercommits an offence specified in sub-section (1) in any place ofworship or in any assembly engaged in the performance of religiouswor-ship or religious ceremonies, shall be punished withimprisonment which may extend to five years and shall also beliable to fine.

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505. Statements conducing to public mischief. —

(1) Whoever makes, publishes or circulates any statement, rumouror report, —

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(c) with intent to incite, or which is likely to incite, any class orcommunity of persons to commit any offence against any otherclass or community, shall be punished with imprisonment which may extend to threeGyears, or with fine, or with both.

9. Only where the written or spoken words have the tendency ofcreating public disorder or disturbance of law and order or affectingpublic tranquility, the law needs to step in to prevent such an activity.The intention to cause disorder or incite people to violence is the sine H

Aqua non of the offence under Section 153 A IPC and the prosecutionhas to prove the existence of mens rea in order to succeed.[1]

10. The gist of the offence under Section 153 A IPC is the intentionto promote feelings of enmity or hatred between different classes ofpeople. The intention has to be judged primarily by the language of theBpiece of writing and the circumstances in which it was written andpublished. The matter complained of within the ambit of Section 153Amust be read as a whole. One cannot rely on strongly worded and isolatedpassages for proving the charge nor indeed can one take a sentencehere and a sentence there and connect them by a meticulous process ofinferential reasoning[2].C

11. In Bilal Ahmed Kaloo v. State of A.P.[3], this Court analysedthe ingredients of Sections 153 A and 505 (2) IPC. It was held thatSection 153 A covers a case where a person by “words, either spokenor written, or by signs or by visible representations”, promotes or attemptsto promote feeling of enmity, hatred or ill will. Under Section 505 (2)Dpromotion of such feeling should have been done by making a publicationor circulating any statement or report containing rumour or alarmingnews. Mens rea was held to be a necessary ingredient for the offenceunder Section 153 A and Section 505 (2). The common factor of boththe sections being promotion of feelings of enmity, hatred or ill will betweenEdifferent religious or racial or linguistics or religious groups or castes orcommunities, it is necessary that at least two such groups or communitiesshould be involved. It was further held in Bilal Ahmed Kaloo (supra)that merely inciting the feelings of one community or group without anyreference to any other community or group cannot attract any of thetwo sections. The Court went on to highlight the distinction between theFtwo offences, holding that publication of words or representation is sinequa non under Section 505. It is also relevant to refer to the judgmentof this Court in Ramesh v. Union of India[4]in which it was held thatwords used in the alleged criminal speech should be judged from thestandards of reasonable, strong-minded, firm and courageous men, andGnot those of weak and vacillating minds, nor of those who scent dangerin every hostile point of view. The standard of an ordinary reasonable 1 Balwant Singh v. State of Punjab, (1995) 3 SCC 214

2 Manzar Sayeed Khan v. State of Maharashtra, (2007) 5 SCC 1

3 (1997) 7 SCC 431H4 (1988) 1 SCC 668

man or as they say in English law “the man on the top of a Claphamomnibus” should be applied.

12. This Court in Pravasi Bhalai Sangathan v. Union of India& Ors.[5]had referred to the Canadian Supreme Court decision inSaskatchewan (Human Rights Commission) v. Whatcott[6]. In thatjudgment, the Canadian Supreme Court set out what it considered to bea workable approach in interpreting “hatred” as is used in legislativeprovisions prohibiting hate speech. The first test was for the Courts toapply the hate speech prohibition objectively and in so doing, ask whethera reasonable person, aware of the context and circumstances, wouldview the expression as exposing the protected group to hatred. Thesecond test was to restrict interpretation of the legislative term “hatred”to those extreme manifestations of the emotion described by the words“detestation” and “vilification”. This would filter out and protect speechwhich might be repugnant and offensive, but does not incite the level ofabhorrence, delegitimization and rejection that risks causing discriminationor injury. The third test was for Courts to focus their analysis on theeffect of the expression at issue, namely, whether it is likely to exposethe targeted person or group to hatred by others. Mere repugnancy ofthe ideas expressed is insufficient to constitute the crime attracting penalty.

13. In the instant case, applying the principles laid down by thisCourt as mentioned above, the question that arises for our considerationis whether the Facebook post dated 04.07.2020 was intentionally madefor promoting class/community hatred and has the tendency to provokeenmity between two communities. A close scrutiny of the Facebookpost would indicate that the agony of the Appellant was directed againstthe apathy shown by the Chief Minister of Meghalaya, the DirectorGeneral of Police and the Dorbar Shnong of the area in not taking anyaction against the culprits who attacked the non-tribals youngsters. TheAppellant referred to the attacks on non-tribals in 1979. At the most, theFacebook post can be understood to highlight the discrimination againstnon-tribals in the State of Meghalaya. However, the Appellant made itclear that criminal elements have no community and immediate actionhas to be taken against persons who had indulged in the brutal attack onnon-tribal youngsters playing basketball. The Facebook post read in itsentirety pleads for equality of non-tribals in the State of Meghalaya. In 5 (2014) 11 SCC 477

6 [2013] 1 SCR 467

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Aour understanding, there was no intention on the part of the Appellant topromote class/community hatred. As there is no attempt made by theAppellant to incite people belonging to a community to indulge in anyviolence, the basic ingredients of the offence under Sections 153 A and505 (1) (c) have not been made out. Where allegations made in the FIRor the complaint, even if they are taken on their face value and acceptedBin their entirety do not prima facie constitute any offence or make out acase against the accused, the FIR is liable to be quashed[7].

14. India is a plural and multicultural society. The promise of liberty,enunciated in the Preamble, manifests itself in various provisions whichoutline each citizen’s rights; they include the right to free speech, toCtravel freely and settle (subject to such reasonable restrictions that maybe validly enacted) throughout the length and breadth of India. At times,when in the legitimate exercise of such a right, individuals travel, settledown or carry on a vocation in a place where they find conditionsconducive, there may be resentments, especially if such citizens prosper,Dleading to hostility or possibly violence. In such instances, if the victimsvoice their discontent, and speak out, especially if the state authoritiesturn a blind eye, or drag their feet, such voicing of discontent is really acry for anguish, for justice denied – or delayed. This is exactly whatappears to have happened in this case.E15. The attack upon six non-locals, carried out by maskedindividuals, is not denied by the State; its reporting too is not denied. TheState in fact issued a press release. There appears to be no headway inthe investigations. The complaint made by the Dorbar Shnong, Lawsohtunthat the statement of the Appellant would incite communal tension andmight instigate a communal conflict in the entire State is only a figmentFof imagination. The fervent plea made by the Appellant for protection ofnon-tribals living in the State of Meghalaya and for their equality cannot,by any stretch of imagination, be categorized as hate speech. It was acall for justice - for action according to law, which every citizen has aright to expect and articulate. Disapprobation of governmental inactionGcannot be branded as an attempt to promote hatred between differentcommunities. Free speech of the citizens of this country cannot be stifledby implicating them in criminal cases, unless such speech has the tendencyto affect public order. The sequitur of above analysis of the Facebook H7 State of Haryana & Ors. v. Bhajan Lal & Ors., 1992 Supp (1) SCC 335

post made by the Appellant is that no case is made out against theAppellant for an offence under Section 153 A and 505 (1) (c) IPC.

16. For the aforementioned reasons, the Appeal is allowed andthe judgment of the High Court is set aside. FIR PS Case No.72 (7)2020 dated 06.07.2020 registered at Police Station Laban is quashed.

Bibhuti Bhushan Bose

Appeal allowed.

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