The Supreme Court in Amish Devgan v Union of India and Ors (W.P [Cri.] No. 160 of 2020), has refused to quash the FIR’s registered against News 18 Television anchor Amish Devgan over his “Lootera Chishti” remarks against Sufi Saint Moinuddin Chishti during a channel debate.

The Court has also directed all the FIRs filed against Devgan in different States to be transferred to the police station in Ajmer, Rajasthan. Senior Advocate Sidharth Luthra appeared for Devgan.

The Division Bench of Justices AM Khanwilkar and Sanjiv Khanna said, “We do not think it would be appropriate at this stage to quash the FIRs and thus stall the investigation into all the relevant aspects.”

The court added that interim protection from arrest granted earlier to the anchor will continue subject to his joining the investigation. Amish Devgan had approached the top court seeking to quash the multiple FIRs registered for offences under Sections 153A (promoting enmity between different groups on the ground of religion) and 295A (hurting religious beliefs) of the Indian Penal Code.

It was claimed that during a channel debate about the Places of Worship Act 1991, Mr. Devgan had 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.

While hosting the debate, he said, “aakrantak Chishti aya… aakrantak Chishti aya… lootera Chishti aya… uske baad dharam badle” (Terrorist Chishti came. Terrorist Chishti came. Robber Chishti came – thereafter the religion changed), imputing that the Pir Hazrat Moinuddin Chishti, a terrorist and robber, had by fear and intimidation coerced Hindus to embrace Islam.

The court observed that, “Persons of influence, keeping in view their reach, impact and authority they yield on the general public or the specific class to which they belong, owe a duty and have to be more responsible.”

While delivering the judgment, the Bench delved deeper into the meaning of ‘Hate Speech’, the tests to identify it, and the distinction between hate speech and free speech.

Elements of Hate Speech

The Division Bench noted the elements of Hate Speech that could be used by courts to define and identify hate speech by referring to an article by Alice E. Marwick and Ross Miller of Fordham University, New York (USA). They are:

1.       Content-based element

“The content-based element involves open use of words and phrases generally considered to be offensive to a particular community and objectively offensive to the society. It can include use of certain symbols and iconography. By applying objective standards, one knows or has reasonable grounds to know that the content would allow anger, alarm or resentment in others on the basis of race, colour, creed, religion or gender.”

 2.       Intent-based element

“The intent-based element of ‘hate speech’ requires the speaker’s message to intend only to promote hatred, violence or resentment against a particular class or group without communicating any legitimate message. This requires subjective intent on the part of the speaker to target the group or person associated with the class/group.”

 3.       Harm-based element or impact-based element

“The harm or impact-based element refers to the consequences of the ‘hate speech’, that is, harm to the victim which can be violent or such as loss of self-esteem, economic or social subordination, physical and mental stress, silencing of the victim and effective exclusion from the political arena.”

The judgment added that the three elements are not watertight silos and do overlap and are interconnected and linked. “Only when they are present do they produce structural continuity to constitute hate speech”, the court said.

Hate Speech vs Free Speech

The Bench referred to a catena of cases and tried to draw a distinction between the two categories of speech stating, “it is necessary to draw a distinction between ‘free speech’ which includes the right to comment, favour or criticise government policies; and ‘hate speech’ creating or spreading hatred against a targeted community or group.”

Further, it says, “The former (free speech) is primarily concerned with political, social and economic issues and policy matters, the latter (hate speech) would not primarily focus on the subject matter but on the substance of the message which is to cause humiliation and alienation of the targeted group.”

“The object of criminalising the latter type of speech is to protect the dignity and to ensure political and social equality between different identities and groups regardless of caste, creed, religion, sex, gender identity, sexual orientation, linguistic preference etc. Freedom to express and speak is the most important condition for political democracy.”

In this context of criminalising speech, the court explained that dignity, “refers to a person’s basic entitlement as a member of a society in good standing, his status as a social equal and as bearer of human rights and constitutional entitlements. It gives assurance of participatory equality in interpersonal relationships between the citizens, and between the State and the citizens, and thereby fosters self-worth.”

The top court clarified that dignity in this sense “does not refer to any particular level of honour or esteem as an individual, as in the case of defamation which is individualistic.” What the court observed was that,

“Loss of dignity and self-worth of the targeted group members contributes to disharmony amongst groups, erodes tolerance and open-mindedness which are a must for multi-cultural society committed to the idea of equality. It affects an individual as a member of a group.”

Elaborating more on the point of dignity to identify hurtful speech, the court said, “Preamble to the Constitution consciously puts together fraternity assuring dignity of the individual and the unity and integrity of the nation. Dignity of individual and unity and integrity of the nation are linked, one in the form of rights of individuals and other in the form of an individual’s obligation to others to ensure unity and integrity of the nation.”

Importantly, the court also said, “The unity and integrity of the nation cannot be overlooked and slighted, as the acts that ‘promote’ or are ‘likely’ to ‘promote’ divisiveness, alienation and schematism do directly and indirectly impinge on the diversity and pluralism, and when they are with the objective and intent to cause public disorder or to demean dignity of the targeted groups, they have to be dealt with as per law.”

The Reasonable Man Test

The court wondered on what basis can the effect of the words, speeches, statements be judged. The Bench said, “the effect of the words must be judged from the standard of reasonable, strong minded, firm and courageous men and not by those who are weak and ones with vacillating minds, nor of those who scent danger in every hostile point of view.”

The important portions of the judgment are hereunder:

“The test is, as they say in English Law, – ‘the man on the top of a Clapham omnibus’. Therefore, to ensure maximisation of free speech and not create ‘free speaker’s burden’, the assessment should be from the perspective of the top of the reasonable member of the public, excluding and disregarding sensitive, emotional and atypical.”

“It is almost akin or marginally lower than the prudent man’s test. The test of reasonableness involves recognition of boundaries within which reasonable responses will fall, and not identification of a finite number of acceptable reasonable responses.”

“Further, this does not mean exclusion of particular circumstances as frequently different persons acting reasonably will respond in different ways in the context and circumstances. This means taking into account peculiarities of the situation and occasion and whether the group is likely to get offended. At the same time, a tolerant society is entitled to expect tolerance as they are bound to extend to others.”

Content and Context

Noting that all speeches are not alike, the court emphasised on the context of the speech. “A speech by ‘a person of influence’ such as a top government or executive functionary, opposition leader, political or social leader of following, or a credible anchor on a T.V. show carries a far more credibility and impact than a statement made by a common person on the street”, said the court.

Content has more to do with the expression, language and message which should be to vilify, demean and incite psychosocial hatred or physical violence against the targeted group, the judgment added. The Judges said that the context of a speech has a certain key variable, namely, ‘who’ and ‘what’ is involved and ‘where’. It also includes the ‘occasion, time and under what circumstances’ the case arises.

In relation to this, the Bench drew a distinction between the speech advocated by dominant groups on one side and historically oppressed groups on the other. It said, “Communities with a history of deprivation, oppression, and persecution may sometimes speak in relation to their lived experiences, resulting in the words and tone being harsher and more critical than usual.

Their historical experience often comes to be accepted by society as the rule, resulting in their words losing the gravity that they otherwise deserve. In such a situation, it is likely for persons from these communities to reject the tenet of civility, as polemical speech and symbols that capture the emotional loading can play a strong role in mobilising.”

“Such speech should be viewed not from the position of a person of privilege or a community without such a historical experience, but rather, the courts should be more circumspect when penalising such speech. This is recognition of the denial of dignity in the past, and the effort should be reconciliatory”, the court importantly noted.

The court also opined that statements/speeches made by persons belonging to positions of power and privilege have to be viewed differently from those made by a common man on the street. As mentioned above, the court remarked that persons of influence have to be more responsible as their reach knows no bounds.

The Bench said, “They (persons of influence) are expected to know and perceive the meaning conveyed by the words spoken or written, including the possible meaning that is likely to be conveyed. With experience and knowledge, they are expected to have a higher level of communication skills. It is reasonable to hold that they would be careful in using the words that convey their intent. The reasonable-man’s test would always take into consideration the maker. In other words, the expression “reasonable man” would take into account the impact a particular person would have and accordingly apply the standard.”

Good Faith and No Legitimate Purpose Protection

The court elaborated on the defense of good faith and no legitimate purpose enjoyed by persons delivering a speech as exceptions to penalisation. The court observed. “Good faith means that the conduct should display fidelity as well as a conscientious approach in honouring the values that tend to minimise insult, humiliation or intimidation. The latter being objective, whereas the former is subjective. The important requirement of ‘good faith’ is that the person must exercise prudence, caution and diligence. It requires due care to avoid or minimise consequences.”

“Good faith or no-legitimate purpose exceptions would apply with greater rigour to protect any genuine academic, artistic, religious or scientific purpose, or for that matter any purpose that is in public interest, or publication of a fair and accurate report of any event or matter of public interest. Such works would get protection when they were not undertaken with a specific intent to cause harm”, the court added.

“A publication which contains unnecessary asides which appear to have no real purpose other than to disparage will tend to evidence that the publications were written with a mala fide intention”, the court held. Finally, the court remarked, “hate speech’ has no redeeming or legitimate purpose other than hatred towards a particular group. In a polity committed to pluralism, hate speech cannot conceivably contribute in any legitimate way to democracy and, in fact, repudiates the right to equality.”

Application in the present case

Justices AM Khanwilkar and Sanjiv Khanna observed that Amish Devgan was a co participant in the live debate that hurt the religious sentiments of people who hold the Sufi Saint Moinuddin Chishti in high regard.

The judgment authored by Justice Khanna said, “It is apparent that the petitioner was an equal co-participant, rather than a mere host. The transcript, including the offending portion, would form a part of the ‘content’, but any evaluation would require examination and consideration of the variable ‘context’ as well as the ‘intent’ and the ‘harm/impact’.”

The court noted that all offences need to be evaluated before the court and facts need to be inquired into and ascertained by police investigation before it can form an opinion on whether an offence is made out.

“Variable content, intent and the harm/impact factors, as asserted on behalf of the informants and the State, are factually disputed by the petitioner. In fact, the petitioner relies upon his apology, which as per the respondents/informants is an indication or implied acceptance of his acts of commission”, the court added.

Accordingly, the petitioner’s plea to quash the FIR’s were declined.

The Supreme Court judgment dated December 7 may be read here:

Related:

Supreme Court stays coercive action on multiple FIRs against Amish Devgan
Multiple FIRs against TV anchor Amish Devgan for insulting Khwaja Moinuddin Chishti on show

The post Why SC refuses to quash FIR’s against Amish Devgan for his ‘Lootera Chishti’ remark appeared first on SabrangIndia.

On Friday, June 26, 2020, the Supreme Court of India granted protection from arrest to news anchor Amish Devgan, against whom multiple FIRs were filed for making contentious remarks during a TV show and stayed FIRs registered by the West Bengal police against editors of news portal OpIndia, The Indian Express reported.

Coercive action against Amish Devgan stayed by SC

A Supreme Court bench of Justices AM Khanwilkar, Dinesh Maheshwari and Sanjiv Khanna stayed any coercive action against TV news anchor Amish Devgan till the next date of hearing in multiple FIRs lodged against him for making offensive remarks against Sufi Saint Khwaja Moinuddin Chishti, Live Law reported.

The SC issued a notice on his writ petition seeking quashing of the FIRs and asked him to implead all the de-facto complainants.

Appearing for Devgan before the SC, Senior Advocate Siddharth Luthra had submitted that his client had made an “inadvertent error” during the show, for which he later issued a public apology. He submitted that lodging an FIR for a “slip of tongue” was unjust and amounted to undue harassment, reported Live Law.

SabrangIndia had done an analysis of Devgan’s June 15, 2020 show titled “Barson baad Ayodhya ki aas hui poori, sant kahein Kashi-Mathura kyun rahe adhuri (Only years later the desire for the Ayodhya temple was fulfilled, why should the Kashi-Mathura temples be left behind, ask saints)?” and found that he was inciting hatred by turning the debate into a religious one instead of covering legal aspects of the matter. The tone of the show was highly sensational and during the show he made an offensive remark at Khwaja Moinuddin Chishti by referring to him as ‘Lootera Chishti’ (looter / plunderer) on more than one occasion.

FIRs from organizations like Raza Academy, Darul Uloom Deoband, Samvidhaan Bachao Manch and members of the Shiv Sena among others were filed against Devgan under Section 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 groups on grounds of religion, race, place of birth, residence, language, etc, and doing acts prejudicial to maintenance of harmony), 120B (criminal conspiracy), 505(2) (statements conducing to public mischief) and 34 (Acts done by several persons in furtherance of common intention) among other sections of the IPC.

Soon after the FIRs were filed against Devgan who is a repeat hate offender, he issued an apology via a tweet and through his show saying that wanted to say ‘Khilji’ but inadvertently said Chishti. Part of his speech where he made the controversial remarks were also deleted from the YouTube channel of News18 India where Devgan is a primetime anchor.

OpIndia FIRs stayed by SC

A vacation bench comprising Justice Sanjay Kishan Kaul and BR Gavai passed an interim order staying the investigations into three FIRs filed against the editors and founders of OpIndia. Three FIRs were filed by the West Bengal police against OpIndia English Editor Nupur Sharma, OpIndia Hindi Editor Ajeet Bharti, CEO Rahul Roushan and Nupur Sharma’s husband Vaibhav Sharma.

OpIndia’s petition pointed out that though other news outlets also carried write-ups on the subject, the “authoritarian Kolkata police” had singled out OpIndia and was using FIRs as an excuse to “intimidate journalists” in getting online content and reports critical of the state government deleted, IE reported.

As per OpIndia, the three contentious articles related to the following –

1.       A Hindi article published on OpIndia Hindi on May 14 which reported BJP leader and Union Minister Debasree Chaudhuri alleging that West Bengal CM was planning to convert West Bengal into an Islamic state and merge it with Bangladesh.

2.       A report published on OpIndia English, a curation of a Sunday Guardian report, which claimed that the West Bengal Bengal government was secretly disposing of bodies of deceased Covid-19 patients and hiding data of coronavirus deaths.

3.       A report published on October 7, 2019 on Azaan being played at a Durga Puja pandal in Kolkata.

Lodging the FIRs, the WB police had asked OpIndia to take down certain content from its website and from Twitter and warned them of repercussions if they failed to do so, the plea said.

The petitioners claimed that the police questioned the family members of those against whom the FIRs were registered and did not provide copies of the FIRs to them despite repeated requests. They also said that the FIRs weren’t uploaded on the official website. The petitioners alleged that the police action was violative of press freedom under Article 19(1) (a) o the Constitution of India and sought a direction from the court to exclude police in matters concerning deletion of internet content, IE said.

Soon after the verdict, OpIndia Editor Nupur Sharma tweeted the SC order with the caption ‘Jai Shree Ram’.

Jai Shree Ram pic.twitter.com/l1NKlN98EM

— Nupur J Sharma (@UnSubtleDesi) June 26, 2020

Related:

News 18’s Amish Devgan rakes up Kashi-Mathura debate, incites anti-minority hate
Multiple FIRs against TV anchor Amish Devgan for insulting Khwaja Moinuddin Chishti on show
Fake News: OpIndia report claim Hindus forced to convert or migrate by Muslims, Uttar Pradesh

The post Supreme Court stays coercive action on multiple FIRs against Amish Devgan appeared first on SabrangIndia.

After his anti-minority diatribe on the Kashi-Mathura debate that he recently held on a primetime show, multiple FIRs have been filed against TV news anchor Amish Devgan for hurting religious sentiments.

In his show which aired on June 15, 2020 titled, ““Barson baad Ayodhya ki aas hui poori, sant kahein Kashi-Mathura kyun rahe adhuri (Only years later the desire for the Ayodhya temple was fulfilled, why should the Kashi-Mathura temples be left behind, ask saints)?” Devgan not only insulted panelists belonging to the minority community but also uttered derogatory remarks against Sufi Saint Khwaja Moinuddin Chishti by referring to him as ‘lootere’ (looter/robber) and ‘aakrantak’ (attacker) Chishti.

Sabrang India had done an analysis of this show only to find out that at such a time when there are more important topics like the failing economy and a looming healthcare crisis to discuss about, a sensationalized debate on this topic was just an act of inciting communal hatred and keep the anti-minority sentiment raging.

Khwaja Moinuddin Chishti, commonly known as Khwaja Gareeb Nawaz was a Persian Muslim preacher and religious scholar. The famous Ajmer Sharif Dargah houses Khwaja Moinuddin Chishti’s shrine and is visited by people of all faiths from all over the world.

In light of these disparaging remarks, several police complaints and FIRs were filed against him all over the country. FIRs were filed in Mumbai, Aurangabad, Rajasthan, Nanded, West Bengal and Uttar Pradesh among other places. Organizations like the Raza Academy, Darul Uloom Chishtiya, Samvidhaan Bachao Manch, members of the Shiv Sena, Samajwadi Party and Jamat Raza-e-Mustafa among many others filed FIRs against the news anchor.

Ajmer Sharif Dargah Thana Police Station – First Information Report – FIR registered against Negative Nationalist Tv Anchor @AMISHDEVGAN #AntiNational #AmishDevgan#ArrestAmishDewgan #ArrestAmishDevgan pic.twitter.com/Q5QueBJkMt

— Haji Syed Salman Chishty-Gaddi Nashin-AjmerSharif (@sufimusafir) June 17, 2020

गिरफ्तारी करके सख्त कार्रवाई की मांग۔
तमाम मुसलमानों की आवाज़ |

#ख़ानक़ाहे_समदिया_फंफूद_शरीफ#Arrest_Amish_devgan pic.twitter.com/Je5moGMr51

— Danish khan (@Danishk79908611) June 18, 2020

Met the Commisioner of @MumbaiPolice – Param Bir Singh ji @CPMumbaiPolice
Requested him to take immediate action against Amish Devgan & arrest him for making derogatory remarks against world renowned saint Hazrat Khwaja Gareeb Nawaz,this won’t be tolerated!#ArrestAmishDevgan pic.twitter.com/SzvtnqercX

— Zeeshan Siddique (@zeeshan_iyc) June 17, 2020

#ArrestAmishDevgan
We demand the Government of India to arrest Amish Devgan and put him in jail pic.twitter.com/OimMdGNxkF

— Sadique Alam Razvi (@sadique_razvi) June 17, 2020

Now Nanded Police of Maharashtra has registered an FIR against Amish Devgan for offence-punishable u/s 295-A of IPC . #ArrestAmishDevgan pic.twitter.com/dYDdqSepa8

— Khizer Patel (@khizer_patel) June 16, 2020

Fire from bhilwara Rajasthan #ArrestAmishDevgan more fir should lodged against Amish Devgan pic.twitter.com/tMf6slnqjd

— Ahtesham Aatif (@AatifAhtesham) June 16, 2020

Raza Academy Demand To File FIR Against News 18 Anchor Ameesh Devgan For His Blasphemous Remarks Against World Renowned Saint Hazrat Khwaja Gareeb Nawaz #ArrestAmishDevgan pic.twitter.com/qG0OURwjTv

— Raza Academy (@razaacademyho) June 16, 2020

पॉपुलर फ्रंट ऑफ इंडिया अंता इकाई की और से आज 18-6-2020 को अमिष देवगन के आपत्तिजनक ख़्वाजा गरीब नवेज़ के लिए कहे जाने पर अंता SDM को ज्ञापन देकर जल्द से गिरफ्तार करने की मांग की।@AMISHDEVGAN #ArrestAmishDevgan pic.twitter.com/gTQKMH6LHj

— mohammad javed (@mohamma84798032) June 18, 2020

“दारुल उलूम देवबंद” ने बहुत ही सख्त अल्फ़ाज़ में न्यूज़ 18 पर #अमीश_देवगन के ‘हिन्दलवली ख्वाजा अजमेरी’ की शान में गुस्ताखी की मज़म्मत की है !
साथ ही हुकूमते हिन्द से चैनल और एंकर के खिलाफ सख्त कार्यवाही की मांग की है !!@PMOIndia#darululoomdeoband #News18 #ArrestAmishDevgan pic.twitter.com/hVaXGIJO1G

— Samajwadi ManzarYar (@SamajwadiManzar) June 17, 2020

After the show aired, #ArrestAmishDevgan (348.4K tweets) started trending on Twitter. It was said that a protest against Devgan was also held outside the main gate of the Ajmer Sharif Dargah.

People protest against Amish Devgan at Ajmer Shareef Outside Main gate of Dargah#ArrestAmishDevgan#BoycotNews18india pic.twitter.com/pQSmBswUri

— ??Faiz Ahmad (@faizahmad_1) June 18, 2020

The chief of the Raza Academy, Muhammad Saeed Noori also met TV 18 officials, demanding them to terminate Devgan with immediate effect. They submitted a memorandum to TV 18 stating that Devgan had misused his position to create unrest between different communities in the country and that his slanderous remarks reached a new low with the insult to Khwaja Gareeb Nawaaz.

Raza Academy Chief Muhammad Saeed Noori Meets TV18 officials, demands to terminate Ameesh Devgan’s Job with immediate effect.#ArrestAmishDevgan pic.twitter.com/VXzIDLfOi4

— Raza Academy (@razaacademyho) June 17, 2020

Soon after he faced unprecedented flak, Devgan took to Twitter to clarify his stance, not apologise, saying that he misspoke and inadvertently referred to ‘Khilji’ as ‘Chishti’.

In 1 of my debates,I inadvertently referred to ‘Khilji’ as Chishti. I sincerely apologise for this grave error and the anguish it may hv caused to followers of the Sufi saint Moinuddin Chishti, whom I revere. I have in the past sought blessings at his dargah.I regret this error

— Amish Devgan (@AMISHDEVGAN) June 16, 2020

हज़रत ख़्वाजा मोइनुद्दीन चिश्ती में मेरी पूरी आस्था है: अमिश देवगन@AMISHDEVGAN pic.twitter.com/v2Z4Utif1u

— News18 India (@News18India) June 17, 2020

However, one look at the show will reveal that there was no mention of Khilji in the debate at all. His remark against Khwaja Moinuddin Chishti were made in response to Maulana Ali Qadri’s clarification that not all Muslims had converted forcefully; they had converted out of choice seeing Khwaja Gareeb Nawaz’s teachings and his life. However, the part of Devgan’s speech where he insults Moinuddin Chishti seems to have been deleted from the video of the show put up on the YouTube channel of News 18 India. It can still however be viewed on the YouTube channel of CNBC Awaaz between 37.15 – 37.25 minutes.

The complaints against Devgan have been filed under Section 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 groups on grounds of religion, race, place of birth, residence, language, etc, and doing acts prejudicial to maintenance of harmony), 120B (criminal conspiracy), 505(2) (statements conducing to public mischief) and 34 (Acts done by several persons in furtherance of common intention) among other sections of the IPC.

Amish Devgan is a repeat offender. Earlier last month, a police complaint was filed against him for spreading fake news of Muslims offering namaaz at the Kurla Masjid in Mumbai amid the lockdown. After the news was proven to be false, he issued a 30-second apology to his viewers for the incident.

Amish had earlier also said that the Delhi violence that took place in February, were “religiously motivated” while insinuating that the anti-Citizenship Amendment Act (CAA) protestors had a part to play in the matter.

Related:

News 18’s Amish Devgan rakes up Kashi-Mathura debate, incites anti-minority hate

The post Multiple FIRs against TV anchor Amish Devgan for insulting Khwaja Moinuddin Chishti on show appeared first on SabrangIndia.