Section 153A Of IPC Does Not Cover Normal Law And Order Issues, Malicious Intent Is Necessary

MATTER IN ISSUE

• The Hon'ble Supreme Court was hearing a writ petition filed by journalist Amish Devgan seeking quashing of FIR lodged against him for his remarks against Sufi Saint Moinnuddin Chisthi.

• The Bench constituted by Justices A. M. Khanvilkarand Sanjiv Khanna delivered a judgment on this case titled Amish Devgan vs. Union of India (Criminal Writ Petitionno. 160 of 2020).

• The judgment was delivered on 7th of December, 2020. The judgment threw light on the interpretation of section 153A of the Indian Penal Code.

SECTION 153A

• Section 153A of the Indian Penal Code deals with the offence of promoting disharmony, enmity or feelings of hatred between different groups on the grounds of religion, race, place of birth, residence, language, etc. and doing acts prejudicial to maintenance of harmony.

• The offence is a cognizable offence and the punishment for the same may extend to three years, or with fine, or with both. However, the punishment of the offence committed in a place of worship is enhanced up to five years and fine.

OBSERVATIONS OF THE COURT

• Taking into consideration the punishment under the above-mentioned section, SC observed that itcannot be given the widest meaning so as to fall foul of the requirement of reasonableness which is a constitutional mandate. S.153A(b) therefore, has to be read accordingly to satisfy the constitutional mandate. We would interpret the words 'public tranquillity' in clause (b) would mean ordre publique a French term that means absence of insurrection, riot, turbulence or crimes of violence and would also include all acts which will endanger the security of the State, but not acts which disturb only serenity, and are covered by the third and widest circle of law and order.

• Public Order in clause (2) to Article 19 nor the statutory provisions make any distinction between the majority and minority groups with reference to the population of the particular area though as we have noted above this may be of some relevance. When we accept the principle of local significance, as a sequitur we must also accept that majority and minority groups could have, in a given case, reference to a local area.

DECISION OFTHE COURT

• With respect to section 153A, the term ‘public tranquility' 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 interest at large.

• The SC dismissed the writ petition seeking quashing of the said FIR.

• The court also added that ‘Public order' also includes acts of local significance embracing a variety of conduct destroying or menacing public order.

• Deliberate and malicious intent is necessary and can be gathered from the words itself satisfying 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.

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