Why SC refuses to quash FIR’s against Amish Devgan for his 'Lootera Chishti' remark

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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: