The Supreme Court quashed criminal proceedings against Shillong Times Editor, Patricia Mukhim, that was initiated over her Facebook post in which she had condemned an attack on some non-tribal boys in Shillong, and had called out Lawsohtun village council for failing to identify the “murderous elements”.
The appeal was filed before the apex court against the Meghalaya High Court order rejecting the application for quashing the FIR.
Last year, while six non-tribal boys of Shillong had gone to a place called Lawsohtun to play basketball, around 20 to 25 unidentified boys assaulted them with iron rods and sticks as per some media reports. Thereafter, Patricia Mukhim took to Facebook condemning the violence, calling out the Lawsohtun village council for failing to identify the “murderous elements”. She also sought that Meghalaya Chief Minister Conrad Sangma and the Dorbar Shnong, the traditional local body, act against the accused.
The village council then filed a complaint against the veteran journalist for her post, alleging that her statement incited communal tension, and might instigate communal conflict. But, she defended her post, stating that she only raised the issue of “continued” attacks on non-tribal persons in her post.
The counsel for the appellant, Senior Advocate Vrinda Grover, urged that the Facebook post should be read in its entirety and there was no intention to promote any feeling of enmity or hatred between two communities and merely a call for suitable action against the culprits. She further asserted her right to freedom of speech under Article 19(1)(a) and voiced her concern about the criminal prosecution resulting in a chilling effect on her (appellant’s) fundamental right to free speech.
The counsel for the state argued that the Appellant is a renowned journalist and is expected to be more responsible when making public comments.
The court observed that, only where the written or spoken words have the tendency of creating public disorder or disturbance of law and order or affecting public tranquility, the law needs to step in to prevent such an activity. It delved into the offence under section 153A of the IPC and stated that the gist of the offence is the intention to promote feelings of enmity or hatred between different classes of people and the intention has to be judged primarily by the language of the piece of writing and the circumstances in which it was written and published. The court observed that the matter must be read as a whole, and only strongly worded and isolated passages cannot be relied upon for proving the charge.
The court observed that mens rea is a necessary ingredient for offence under section 153A and section 505 (2) of the IPC and since common factor between the sections is promotion of feelings of enmity, hatred or ill-will between different religious or racial or linguistics or religious groups or castes or communities, it is necessary that at least two such groups or communities should be involved. The court relied upon Ramesh v. Union of India [(1988) 1 SCC 668] to observe that words used in the alleged criminal speech should be judged from the standards of reasonable, strong-minded, firm and courageous men, and not those of weak and vacillating minds, nor of those who scent danger in every hostile point of view.
The court then referred to the Canadian Supreme Court decision in Saskatchewan (Human Rights Commission) v. Whatcott ( 1 SCR 467) whereby tests were laid out for identifying hate speech. The first test was for the Courts to apply the hate speech prohibition objectively and in so doing, ask whether a reasonable person, aware of the context and circumstances, would view the expression as exposing the protected group to hatred. The second test was to restrict interpretation of the legislative term “hatred” to those extreme manifestations of the emotion described by the words “detestation” and “vilification”. The third test was for Courts to focus their analysis on the effect of the expression at issue, namely, whether it is likely to expose the targeted person or group to hatred by others.
The court, based on the cases it relied upon and the observations made, held that a close scrutiny of the Facebook post would indicate that the agony of the Appellant was directed against the apathy shown by the Chief Minister of Meghalaya, the Director General of Police and the Dorbar Shnong of the area in not taking any action against the culprits. The court said that at the most, the Facebook post can be understood to highlight the discrimination against non-tribals in the State of Meghalaya.
“The Facebook post read in its entirety pleads for equality of non-tribals in the State of Meghalaya. In our understanding, there was no intention on the part of the Appellant to promote class/community hatred.”
The court further held that Where allegations made in the FIR or the complaint, even if they are taken on their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused, the FIR is liable to be quashed.
“The complaint made by the Dorbar Shnong, Lawsohtun that the statement of the Appellant would incite communal tension and might instigate a communal conflict in the entire State is only a figment of imagination. The fervent plea made by the Appellant for protection of non-tribals living in the State of Meghalaya and for their equality cannot, by any stretch of imagination, be categorized as hate speech. It was a call for justice – for action according to law, which every citizen has a right to expect and articulate.”
The court further held that, “Disapprobation of governmental inaction cannot be branded as an attempt to promote hatred between different communities. Free speech of the citizens of this country cannot be stifled by implicating them in criminal cases, unless such speech has the tendency to affect public order.”
The court held that no case was made out against the appellant and set aside the High Court order and ordered the FIR to be quashed.
The complete order may be read here28921_2020_37_1501_27280_Judgement_25-Mar-2021