"Extreme or Harsh Point Of View Not Hate Speech": Bombay High Court Reiterates The Ingredients Of Section 153A IPC

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, a division bench of Justices SS Shinde and MS Karnik observed.

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 bench observed that Holey's intent behind reposting the video with a comment was only to criticise that man's perspective.

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 further observed that an offence wasn't registered against the author of the video or the person blaming the Prime Minister, so also, there was no disturbance reported after.

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 tweet in question, if judged on the basis of what a reasonable and strong-minded person will think of it, leaves little manner of doubt in our mind that the same is only expressing a hostile point of view. The Respondent's approach towards the tweet is hypersensitive and over-cautious, thereby trying to scent danger in the hostile point of view expressed by the Petitioner."

The bench cited a list of judgements Imp Judgements relied on

• 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's case)
• 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 & Bhajanlal's case.)
• 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. (Refer Bilal Ahmed Kaloo's case)
• The intention to cause disorder or incite people to violence is the sine qua non of the ofence 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's case)

Tweets against Thackareys

Apart from the present FIR, Holey is booked under section 505(2) and 500(defamation) of IPC in two more FIRs relating to different tweets posted by her. She was arrested in August last year and then released on bail in the case registered against her by the police at Bandra Kurla Complex cyber crime department. Her tweets were directed at Chief Minister Uddhav Thackeray and State Cabinet Minister Aaditya Thackeray.

Appearances

Dr. Abhinav Chandrachud a/w advocates Chandansingh Shekhawat, Yashowardhan Deshmukh, Sailee Dhayalkar instructed by Farishta Menon for Holey

Senior Advocate M.S. Mohite and advocate Vivek Babar, and APP Jayesh Yagnik for the State.

[Sunaina Holey vs State of Maharashtra]