[Hate speech] Who made speech matters; Catholic priest cannot get same protection as stand up comedians: Madras High Court

In a case of hate speech against a religious community, the aspect of "who gave the speech" is relevant to determine whether an offence is made out under Sections 153A and 295A of the Indian Penal Code (IPC), the Madras High Court ruled [Fr. P. George Ponnaiah v. The Inspector of Police]. .Thus when stand-up comedians like Munawar Faruqui or Alexander Babu poke fun at others, their religious identity might be irrelevant since there is no malice, but the same benefit cannot be extended to a catholic priest deriding Hindu religious beliefs, the Court said.“When stand-up comedians Munawar Faruqui or Alexander Babu perform on stage, they are exercising their fundamental right to poke fun at others. Again, their religious identity is irrelevant. It is here, the “Who?” and “Where?” tests matter. Section 295A of IPC cannot be invoked in such cases because the element of malice is wholly absent,” the Court said. Justice GR Swaminathan, therefore, held that a speech made by a catholic priest prima facie outraged religious feelings of Hindus and promoted religious enmity and refused to quash the offences under Sections 295A, 153A [promoting enmity between different groups on grounds of religion] [outrage religious feelings], 505(2) [Statements creating or promoting enmity, hatred or ill-will between classes] of the Indian Penal Code against him..The High Court was hearing a plea by an ordained Catholic diocesan priest who spoke at a meeting organized at Arumanai, a village in western Kanyakumari district.The petitioner’s speech was video-recorded and went viral on social media..A first information report (FIR) was registered against the petitioner under Sections 143 [Unlawful assembly], 153A [Promoting enmity between different groups on grounds of religion], 295A [outrage religious feelings], 505(2) [Statements creating or promoting enmity, hatred or ill-will between classes], 506(1) [Criminal intimidation] and 269 [Spread infection] of IPC and Section 3 of the Epidemic Diseases Act.The petition was filed seeking quashing of the same..The Court on reading the petitioner’s speech found no doubt that his target was the Hindu community, as he was repeatedly demeaning the community as a whole.Rejecting the petitioner's claim for immunity on grounds that even the likes of Ambedkar were harsh critics of religions, the Court observed:"He cannot insult or outrage others' religion or their religious beliefs and still claim immunity from the application of Section 295A/ 153A/ 505(2) of IPC. This is because he views the other religionists as a constituency to be poached. He cannot be called a disinterested or neutral commentator. The targeted religionists are bound to take offence as they fear potential harm to their interests and well-being."The judge pointed out certain sections of the speech to justify his conclusion, “I was born into a Hindu family. My grandfather was Hindu. Since he thought it fit that his daughter should leave this gutter, he gave her hands in marriage to my Christian father.”.To summarise, in the video the petitioner mocked the Minister for the Hindu Religious and Charitable Endowments Department, directed his ire at MR Gandhi, a Bharatiya Janata Party MLA known to walk barefoot out of 'respect for Mother Earth', and at the Home Minister and the Prime Minister.“The last days of Modi are going to be pathetic. I give it in writing. If the God we worship is a true living God, the history should see Modi and Amit Shah being eaten by dogs and worms,” the order quoted from his speech..The counsel for the petitioner argued that the petitioner had circulated a video expressing his regret and clarifying that his words were not meant to hurt Hindus’ sentiments. It was contended that the petitioner did not even circulate the video himself.The petitioner’s counsel also argued that leaders like Dr Ambedkar and EV Ramasamy had criticised the Hindu religion in far harsher terms and therefore, no exception could be taken to what the petitioner said.He submitted that when it came to protection of the fundamental right to freedom of speech and expression, the Court must always lean in favour of free speech.“He added that even if the words uttered by the petitioner may not be in good taste, they would not amount to an offence,” the Court noted..Contrarily, the counsel for the public-spirited intervenors argued that the value of free speech in a particular case must be measured in specifics and not all types of speech had equal value as held in Lord Steyn in R v. Secretary of State for the Home Department, Ex parte SIMMS.Further, the Court’s attention was drawn to the judgment of the Supreme Court in Amish Devgan v. Union of India where the Court defined hate speech as a form of expression through which the speaker primarily intends to vilify, humiliate or incite hatred against the targets and laid down that the test “Who? What? and Where?” must be employed to determine the context..After hearing both parties, the Court arrived at the conclusion that offences relating to unlawful assembly, criminal intimidation and spread of disease were not attracted..Justice Swaminathan, however, found that the petitioner prima facie did outrage religious feelings. He opined that there was absolutely no need to mount a “visceral attack” on the religious beliefs of Hindus and the same was unwarranted.“That is what makes it deliberate and malicious. The petitioner poked fun at those who walk barefoot out of reverence for Mother Earth. He stated that Christians wear shoes so that they won’t catch scabies. He painted Bhuma Devi and Bharat Mata as sources of infection and filth,” he observed stating that nothing could have been more outrageous to the feelings of believing Hindus..In the same breath, the Court clarified that it was not necessary for all Hindus to feel outraged and even a section of Hindus being outraged would attract penal provisions.“Bharat Mata evokes a deeply emotional veneration in a very large number of Hindus. She is often portrayed carrying the national flag and riding a lion. She is to many Hindus a Goddess in her own right. By referring to Bharat Mata and Bhuma Devi in the most offensive terms, the petitioner has prima facie committed the offence under Section 295A of IPC.”.The Court while answering its own question of whether the State can ignore such incendiary statements as that of a “lunatic fringe” stated in the negative reasoning that, “the petitioner is a charismatic catholic priest. He commands a large following.”.The single-Judge summarily rejected the contention comparing the petitioner to Dr Ambedkar, explaining that a critical or even a harsh statement pertaining to religion or religious beliefs coming from a rationalist or a reformist or an academic or an artist would stand on a different footing altogether and the shield of fundamental right guaranteed under the Constitution under Article 19(1)(a) would be available to them.However, the same would not extend to an “evangelist” like the petitioner since he could not be called disinterested or a “neutral commentator”..Therefore, the High Court resolved that the State cannot remain a mute spectator in such situations and the strong arm of the law must come down heavily on those who seek to disrupt communal peace and amity.“The offending speech of the petitioner prima facie attracts the offences under Sections 153A, 295A and 505(2) of IPC. However, the offences under Section 143, 269 and 506(1) of IPC and Section 3 of Epidemic Diseases Act, 1897 are not made out.”.The judge ended the verdict on a rather poetic note with the thought, “I am certain that on the Judgment Day, God shall admonish the petitioner for having committed an un-Christian act.”.Advocate T Lajapathi Roy appeared for the petitioner. The respondents were represented by Additional Public Prosecutor E Antony Sahaya Prabhakar, Advocates L Victoria Gowri and Sricharan Rangarajan..[Read Order]