The high court laments the misuse of Section 153A of the IPC to silence opinions and dissent, and notes that such cases are on the rise.
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THE Bombay High Court on Monday quashed two criminal cases against Sandeep Kudale, an Indian National Congress member, for publishing a video on Bharatiya Janata Party leader and Maharashtra minister Chandrakant Patil’s alleged objectionable remarks against Dr. B.R. Ambedkar, Mahatma Jyotiba Phule and Karmaveer Bhaurao Patil.
A division bench comprising Justices Revati Mohite Dere and Prithviraj K. Chavan also imposed costs of Rs. 25,000 on the state government, which is to be recovered from the salary of the police officers responsible for the unjustified arrest of the petitioner.
The judgment, authored by Justice Mohite Dere notes, “Law could not be used as a tool or as an instrument of oppression, by registering FIRs, to harass people by preventing/intimidating them, from expressing their views/opinions/dissent, which the Constitution of India, guarantees to them.”
The right to express one’s views, the judgment says, is a protected and cherished right in our democracy, and cannot be taken away by the imposition of Section 153A (promoting enmity between different groups on grounds of religion, race, place of birth and residence) of the Indian Penal Code (IPC) and by arresting a person, as has been done in the present case.
The judgment flags the misuse of Section 153A, holding: “Section 153A cannot be resorted to silence people from expressing their views/opinions/dissent, so long as Article 19(2) [of the Constitution] is not violated. Cases under Section 153A are on the rise and the onus is on the police/State to ensure that the said provision is not misused by anyone, much less, political parties.”
It was ruling on two petitions filed by Kudale seeking to quash two first information reports (FIRs) against him at the Kothrud police station in Pune for alleged offences punishable under Section 153A(1)(a) and 153A(1)(b) of the IPC, and at the Warje Malwadi Police Station in Pune for alleged offences punishable under Sections 153A(1)(a), 153A(1)(b) and 505(2) (statements creating or promoting enmity, hatred or ill-will between classes) of the IPC.
Examining the video uploaded by Kudale on social media, the bench observed that even the contents of the video are taken as it stands, no offences as alleged are made out against the petitioner.
From the FIRs, the bench found that the petitioner went near the residence of the minister and took a video of himself outside the gate. He made the impugned comments and uploaded the same on social media.
“The gist of the offence of Section 153A, is the intention to promote feelings of enemity/hatred between different classes of people. The intention to cause disorder or incite the people to violence is the sine qua non of the offence and the prosecution has to prima facie show the existence of mens rea on the part of the accused. The same is clearly wanting in both cases,” the bench held.
“The contents of the video if read in its entirety and in the background in which the same were made, does not show that the petitioner, an ordinary citizen, affiliated to a political party, had any malafide intention or the requisite mens rea necessary to constitute the alleged offences; nor does it appear, that it was the petitioner’s intention to promote hatred or enmity, much less to disturb public tranquility or to create law and order issues,” the bench added.
It highlighted that the context and genesis in which the petitioner made the comments cannot be lightly brushed aside or ignored.
“The comments would have to be weighed and considered in the context of what provoked the petitioner to make the said comments. It appears that the petitioner made the said comments pursuant to the alleged derogatory comments made by the Minister on a public platform with respect to Dr. Babasaheb Ambedkar, Mahatma Jyotiba Phule and Karmaveer Bhaurao Patil,” the judgment says.
The court ruled that the petitioner had only expressed his opinion and his dissent, and condemned what was stated by the minister, adding that the language and the words used by the petitioner in one of the videos, at the most, could be said to be distasteful, but certainly not warranting registration of the FIR, much less the petitioner’s arrest.
Click here to view the Bombay High Court’s full judgment.
