The Bombay High Court has quashed the FIR filed against Sunaina Holey who was charged for promoting enmity through her tweet. The bench of Justices SS Shinde and MS Karnik held that the petitioner only expressed a hostile point of view and the State’s approach towards the tweet was hypersensitive and over cautious. The court held, that just because the point of view of the Petitioner is extreme or harsh, it is not hate speech.
The petitioner sought quashing of the FIR filed against her for a tweet she shared pointing out a video where the crowd is seen blaming the Covid pandemic on Prime Minister Modi. The tweet in question read:
“Crowd shouting Yeh ALLAH KE TARAF SE NAHI HAI YE MODI KE TARAF SE HAI- What’s going to happen next @ ofceofut @ AUThackeray @priyankac19? PR karona ab. Blame it on @narendramodiji. Hain? Bandra Masjid Location Hai. Ab aur kuch bolu? Single Source Kaaf Hai. @ Dev_Fadnavis Help”.
The counsel for the petitioner, Abhinav Chandrachud contended that the ingredients for constituting an offence under Section 153A (Promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and acts prejudicial to maintenance of harmony) IPC are not made out. He further contended that she is not the author of the video and merely referred to it.
The respondents argued that from the tweet made by the Petitioner, it becomes explicitly clear that she has deliberately distorted facts. The petitioner claimed in her tweet that the entire crowd was blaming the Hon’ble Prime Minister whereas if the video is seen it becomes extremely difficult to ascertain as to who amongst the crowd said his name. He urged that the Petitioner has deliberately amplified the weakened voice of a single individual and has projected in her tweet that the entire crowd is shouting the name of the Prime Minister.
Before making a decision on quashing the FIR, the court made some inferences from the cases cited by the petitioner as well as respondent, some of which are mentioned below:
The intention of the accused must be judged on the basis of the words used by the accused along with surrounding circumstances
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
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 the section
The intention to cause disorder or incite people to violence is the sine qua non of the offence under Section 153A of IPC and prosecution has to prove prima facie the existence of mens rea on the part of the accused
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.
The court observed that the petitioner in her tweet has expressed her disapproval to the view point of the person in the crowd who blamed the Prime Minister of India for the pandemic. The court opined that the State is reading too many things between the lines to come to the conclusion that an offence under Section 153A IPC is made out.
“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 court observed.
The court further observed that the video was already in circulation and the petitioner merely reposted it while objecting the view point of the person seen in the video. The court stated that it is difficult to form an opinion of likelihood of harm arising from the tweet made by the Petitioner as the same is too remote, conjectural or far-fetched.
“The intention on the part of the Petitioner can by no stretch of imagination be said to cause disorder or incite people to violence which is sine qua non for the offence under section 153A of IPC,” the court held.
While upholding right to express one’s views, the court held that “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”.
“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. It is material to note that reading of the contents of the tweet would reveal that neither any community nor any religion is named,” the court observed.
Applying the test of a strong or prudent person, the court concluded that by no stretch of imagination it can be said that the said tweet created hatred or enmity between two communities.
The court held that even if all materials are taken at face value, they do not prima facie constitute any offence against the petitioner and thus quashed the FIR filed against her.
The complete judgement may be read here:
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