Persons Of Influence Have To Be More Responsible In Speech : Supreme Court In Amish Devgan's Case

In the judgment refusing to quash the FIR against News 18 anchor Amish Devgan, the Supreme Court observed that persons of influence have to be more responsible in speech.

"Persons of influence, keeping in view their reach, impact and authority they yield on general public or the specific class to which they belong, owe a duty and have to be more responsible", said the judgment delivered by a bench comprising Justices AM Khanwilkar and Sanjiv Khanna.

Devgan had approached the top court seeking to quash the multiple FIRs registered for offences under Section 153A/295A of the Indian Penal Code over his remarks on Sufi Saint Moinuddin Chishti. During a channel debate about the Places of Worship Act 1991, Devgan had allegedly used the expression "lootera Chishti".

While rejecting the plea to quash the FIR, the Supreme Court delved into the concept of 'hate speech' and remarked that persons of influence ought to exercise more responsibility in their speech having regard to their reach.

"They 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, just like we substitute the reasonable man's test to that of the reasonable professional when we apply the test of professional negligence", the Court observed.

The Court added that this does not mean that persons of influence like journalists do not enjoy the same freedom of speech and expression as other citizens. But the question of 'who' made the statement might become relevant when the courts examine the elements of 'hate speech' such as 'harm or impact element'  'intent' and/or'content element'(For a detailed reading on the elements of hate speech, read this report).

Hate Speech Repudiates Right To Equality In A Polity Committed To Pluralism : Supreme Court

"Our observations are not to say that persons of influence or even common people should fear the threat of reprisal and prosecution,if they discuss and speak about controversial and sensitive topics relating to religion, caste, creed, etc. Such debates and right to express one's views is a protected and cherished right in our democracy. Participants in such discussions can express divergent and sometimes extreme views, but should not be considered as'hate speech' by itself, as subscribing to such a view would stifle all legitimate discussions and debates in public domain. Many a times, such discussions and debates help in understanding different view-points and bridge the gap. Question is primarily oneof intent and purpose. Accordingly, 'good faith' and 'no legitimate purpose' exceptions would apply when applicable", the bench clarified.

The Court observed that the law of 'hate speech' recognises that all speakers are entitled to 'good faith' and '(no)-legitimate purpose' protection.

"'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 exerciseprudence, caution and diligence. It requires due care to avoid or minimise consequence.'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"(Para 53).

The Court observed that 'hate speech' has no redeeming or legitimate purpose other than hatred towards a particular group.

"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 observed.

"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", the judgment authored by Justice Khanna observed.

The Court said that a universal definition of 'hate speech' remained difficult, except for one commonality that 'incitement to violence' is punishable.

"Therefore, constitutional and statutory treatment of 'hate speech' depends on the values sought to be promoted, perceived harm involved and the importance of these harms,it said.

Though the Court refused to quash the FIR, observing that the issue whether elements of 'hate speech' are made out against Devgan can be determined only in a trial, it granted a limited relief to him by clubbing the multiple FIRs and transferring them to Ajmer.

"We have already reproduced relevant portions of the transcript of the debate anchored by the petitioner(Devgan). 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'. These have to be evaluated before the court can form an opinion on whether an offence is made out. The evaluative judgment on these aspects would be based upon facts, which have to be inquired into and ascertained by police investigation.'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. Having given our careful and in-depth consideration, 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 judgment observed.

Click here to read/download the judgment