AMISH DEVGAN

VS. UNION OF INDIA

Presented by : Raghvendra Singh Solanki

 FACTS OF THE CASE

• On June 15, 2020, Amish Devgan, a television journalist, hosted a show which debated the Places of Worship
(Special Provisions) Act, 1991. The Act – which “prohibits conversion and provides for maintenance of the
religious character of places of worship as it existed on 15th August, 1947” – had been challenged by Hindu
priests organizations and a Muslim organization was opposing the challenge. [para. 3]. During the televised
debate, Devgan had described revered Muslim Sufi saint, Pir Hazrat Moinuddin Chishti, as a terrorist intruder
who had “by fear and intimidation coerced Hindus to embrace Islam” [para. 4]. After the debate, Devgan was
accused of having “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” [para. 4].
Devgan received death threats over social media and a number of First Information Reports (FIRs) –
information given to a police officer about a criminal offence – against Devgan were registered in various
police stations under various state jurisdictions in the country. These FIRs were registered under sections
295A (Deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion
or religious beliefs), 153A (Promoting enmity between different [religious] groups..and doing acts prejudicial to
maintenance of harmony), 505 ( Statements conducing to mischief) and 34 (Acts done by several persons in
furtherance of common intention) of the Indian Penal Code, 1860.
 FACTS OF THE CASE

• On June 17, 2020, Devgan tweeted an apology video, noting that he had mistakenly referred
to Pir Hazrat Moinuddin Chishti when he meant to refer to Alauddin Khilji. The apology was
also aired on the television channel which had hosted the initial debate.
• On June 22, 2020, Devgan approached the Supreme Court in a writ petition to seek
dismissal of these FIRS as an extraordinary judicial relief under the scope of section 482 of
the Criminal Procedure Code, 1973. This section empowers a Court to make any order “to
prevent an abuse of the process of any Court or otherwise to secure the ends of justice”. It
has been used to quash proceedings arising out of FIRs in other cases. The States of
Maharashtra, Rajasthan, Telangana and Uttar Pradesh and a number of private respondents
opposed Devgan’s application.
 CONTENTION RAISED : PETITIONER

• Devgan argued that the criminal proceedings filed against him were designed to “harass and
intimidate” him and that it was an abuse of law to file multiple criminal cases out of the
same incident [para. 8]. He also submitted that there was no offence committed under the
Penal Code or the Information Technology Act as he had no intention to “outrage religious
beliefs and feelings” and that his words were merely careless, which does not fall within the
ambit of the offences in section 153A, 295A, and 505(2) of the Penal Code. In the
alternative, Devgan submitted that the only offence was one of “trifle or minor” harm, under
section 95 of the Penal Code, or that all offences should be joined together and heard as
one.
 CONTENTION RAISED : RESPONDENTS

• The Respondents argued that Devgan was a “habitual offender” as he had made the same
statements about the Pir in the past and had offered similar apologies [para. 9]. They
submitted that it was not possible that Devgan had made a mistake because he had
mentioned “Chishti” three times, the discussion at the pertinent time was about Chishti and
that the recording of the debate that was uploaded on YouTube had been edited to remove
the references to Chishti. The respondents maintained that Devgan’s apology was not
genuine as it was only issued after the FIRs were filed. They also argued that the purpose of
the televised debate was to “malign the Muslims and to promote hatred” [para. 10]. The
Respondents argued that article 19 of the Indian Constitution (which protects the right to
freedom of expression) “is subject to express limitations” under subsection (2), and that
section 19 of the Cable TV (Regulation) Act prohibits the “broadcast [of] any content that
promotes hate or ill will” [para. 10].
 OBSERVATION OF SUPREME COURT

• The Court provided a thorough analysis of the nature of hate speech offences around the world
and of the Indian legislative and constitutional framework around the right to freedom of
expression and its permissible limitations. It noted that “it remains difficult in law to draw the
outmost bounds of freedom of speech and expression beyond which the right would fall foul”
and highlighted that there are considerations of “democratic values and public law” which makes
it difficult to determine when it is both reasonable and proportional to criminalize speech [para.
15]. With reference to the case of Pravasi Bhalai Sangathan v. Union of India (2014) 11 SCC 477 the
Court noted that it had requested the Law Commission of India to research and make
recommendations to Parliament on creating new hate speech law but that the government had
not yet accepted the Commission’s recommendations. The Court referred to the Law
Commission’s Report in detail, noting that the Report covered the international standards
addressing hate speech, including article 20(2) of the ICCPR, articles 4 and 5 of the International
Convention on the Elimination of All Forms of Racial Discrimination, article 10 of the European
Convention of Human Rights, and the UN Special Rapporteur report on internet content. The
Court noted that the European Court of Human Rights has held that “speech propagating
religious intolerance, negationism, homophobia etc. has been excluded from the ambit” of
protection of free speech [para. 17].
 OBSERVATION OF SUPREME COURT

• The Court also quoted Andrew Sellars’s essay Defining Hate Speech in detail and discussed an article on online harassment by
Alice E. Marwick and Ross Miller which identified three ways in which hate speech can be defined: “content-based element,
intent-based element and harm-based element” [para. 48]. It stressed that the test for hate speech has to be objective, based on
the reasonable man standard, but that the context – namely the speaker and the audience – must be considered alongside the
subjective enquiry into whether the speaker spoke with good faith.
• The Court distinguished between free speech – which it characterized as including the right to criticize government policies –
and hate speech, which is “creating or spreading hatred against a targeted community or group”, and stated that the purpose of
criminalizing hate speech is to protect dignity and to “ensure political and social equality between different identities and
groups” [para. 54].
• The Court spent considerable time discussing the role of free speech in democracy and stated that “[f]reedom to express and
speak is the most important condition for political democracy” and stressed the importance of being able to challenge
government policy and elected officials [para. 54]. It added that making a false statement about government policies would
never constitute hate speech, and that, here, the limit is only when speech threatens public order. The Court did note there may
be a difficulty in determining whether speech is “political or policy comment” or if it “creates or spreads hatred against the
targeted group or community” [para. 55]. It commented that the distinction is that what would be hate speech is “hate which
tends to vilify, humiliate and incite hatred or violence against the target group based upon identity of the group beyond and
besides the subject matter” [para. 55]. It also stressed, with reference to K.A. Abbas v. Union of India (1970) 2 SCC 780, Ebrahim
Sulaiman Sait v. M.C. Mohammed (1980) 1 SCC 398 and Lalai Singh Yadav v. Uttar Pradesh 1971 Cri LJ 1773 (FB), that the intention
and purpose of the speaker is paramount, which prevents silencing genuine discussion on sensitive issues.
 OBSERVATION OF SUPREME COURT

• The Court then analyzed the legislative provisions under which the FIRs had been filed against Devgan. Section
153A, first enacted in 1898, makes it an offence to promote “enmity between different groups on grounds of
religion, race, place of birth, residence, language etc. and doing acts prejudicial to the maintenance of harmony”.
In respect of the requirement that there be intention to promote enmity, the Court recognized that the main
source is the words themselves, but that courts can have reference to other evidence. In addition, Gopal Vinayak
Godse v. Union of India AIR 1971 Bom 56 had found that courts can hold that “the language of the writing is of
the nature calculated to promote feelings of enmity or hatred” as a speaker can be “presumed to intend the
natural consequences of his act” [para. 62]. The Court agreed with the findings in P.K. P.K. Chakravarty v.The
King AIR 1926 Calcutta 1133 and Devi Sharan Sharma v. EmperorAIR 1927 Lah 594 that “[t]he ordinary
reasonable meaning of the matter complained of may be either the literal meaning of the published matter or
what is implied in that matter or what is inferred from it” [para. 62].
• In assessing the facts of the present case, the Court dismissed Devgan’s argument that criminal proceedings
could only be filed in the jurisdiction where the debate was filmed and noted that the debate was “broadcast
on a widely viewed television network” and that the viewers – located throughout India – were affected by
Devgan’s statements [para. 13]. The Court also rejected Devgan’s defence that his conduct merely constituted
a trivial offence, noting that the evidence on the nature of his conduct would have to be collected and
considered by law enforcement authorities and that the Court was not in a position to determine the triviality
of the offence, at this stage.
 OBSERVATION OF SUPREME COURT

• The Court then applied the tests of content, context, intent and harm to determine whether an offence had
been made out. In respect of the content of Devgan’s statements, it found that there was no doubt about what
Devgan had said (as the Court had the full, accurate transcript of the debate), and that Devgan was a co-
participant in the debate (rather than just a host). The Court noted that the Respondents had submitted that
Devgan’s apology was “an indication or implied acceptance of his acts of commission” [para. 78]. The Court
stated that following its “careful and in-depth consideration” it would not dismiss the FIRs and would leave it
to the authorities to apply their minds to the matters. It stressed that the court can only act at this stage of
criminal proceedings to “prevent abuse of process or otherwise to secure ends of justice” [para. 80]. It also
applied the jurisprudential standards for the granting of the extraordinary remedy under section 482 of
Criminal Procedure Code, 1973 which protect the accused in situations where criminal proceedings are
entirely misconceived or where the offence isn’t made out even if the allegations are accepted at face value. On
the application of these “strict and restricted” requirements for the granting of this relief, the Court found that
they “were not satisfied in the present case” [para. 80].
• The Court also held that all the separate complaints should be treated as statements but that they would be
combined and heard together at the place the first complaint was lodged.
 CONCLUSION

The Court provided a helpful overview of the constitutional and legislative

framework of hate speech in India, as well as of comparative jurisprudence.
However, due to presence on conflicting precedents and the pre-trial nature of this
adjudication, the law on investigation of hate speech and its proportionate legal
penalty in view of the provision for free expression, needs greater
clarity. Nevertheless, by actively choosing to not interfere in a valid criminal
investigation in a case where the offence of hate speech was prima facie established,
the Court is signaling that India, as a jurisdiction believing in rule of law, does not
pardon or grant impunity to people who infringe the group dignity of a minority
community.