Bombay High Court seeks response from Central and State governments on plea for guidelines to curb vilification of dead

The Bombay High Court today sought the responses of the Central and State governments to a plea seeking guidelines to curb the circulation of derogatory remarks about dead persons in the press or through social media platforms. [Kumar Saptarshi & Ors. v. State of Maharashtra & Ors.].A division bench of Chief Justice DK Upadhyaya and Justice Arif Doctor also decided to appoint an amicus in the case to assist the bench to deal with the broader issue of implementation of Article 51A (b) and (e) of the Constitution. These provisions deal with duties to cherish and follow the noble ideals which inspired our national struggle for freedom and to promote harmony and the spirit of common brotherhood amongst sectional diversities..The petitioners before the Court, the Maharashtra Gandhi Smarak Nidhi (MGSN) and associated social workers, moved the Court raising grievance that there have been numerous incidents in the recent past where deliberate utterances were made against people who were not alive but held in high esteem, including Mahatma Gandhi. .Senior Advocate Anil Anturkar argued that the petitioners were merely concerned that groups with differing ideologies and heroes should not end up maligning each other’s heroes. “National heroes should remain undisturbed in their grave or wherever they are,” Anturkar said. He submitted that the High Court had powers to frame guidelines as sought by the petitioners, since there was a gap in the law. Anturkar also urged the Court to take a preventive stand and issue guidelines, instead of waiting for something untoward to happen..The Court, however, was not convinced about whether it could intervene on the issue. Referring to the law on defamation, the Court pointed out“Legislature has consciously used the words ‘family’ in the section. Can we expand the scope of the section? Will it not amount to legislating or forming an adaptive thicket that will lead to interference in executive action? Are you not inviting us to enter into policy-making issues? If we interpret and expand, will it not amount to entering into legislative action? What will be an offence? What acts will amount to a criminal offence, has to be ascertained and declared by the executive or legislature. We cannot say that.".Maharashtra Advocate General Dr Birendra Saraf asserted that the field of defamation has been extensively legislated upon. “The genesis of the petition that this issue is an unoccupied field is a misconceived proposition. The legislature has carved out a proper framework. The law relating to crimes cannot take into account the sentiments of certain sections of society. Apart from legislation, the State also has to look into logistics and infrastructure to handle such crimes. To create a list of such persons who are held in high esteem, this kind of direction is incapable of implementation,” the Advocate General argued.Additional Solicitor General Devang Vyas, along with Advocate Shardul Singh, appearing for the Union government argued that if someone is aggrieved by certain utterances against a person of historical importance, then he can approach the court with appropriate proceedings under Sections 292, 294 of the Indian Penal Code (IPC) against such "obscenity"..The Court questioned both counsel on whether the existing IPC provisions incorporate the principles of the Constitution mention under Article 51A (b) and (e).“The provisions under the Constitution say we have to cherish constitutional ideals. If it hurts feelings of sectional identities, then criminal defamation section is not available to such a group, but only family members. We cannot say the field is already occupied,” the Court remarked. .Anturkar eventually submitted that the petitioners did not intend to press a challenge to the constitutional vires of Sections 499 and 500 of the IPC (dealing with criminal defamation). The Court then sought a detailed reply from the Central and State governments on the prayer for issuance of guidelines. .The Court also directed the petitioner to remove Hindu activist Sambhaji Bhide as a party respondent from the plea. Pertinently, the petition was filed against the backdrop of Hindu activist Sambhaji Bhide making allegedly derogatory remarks against Mahatma Gandhi. The Court, however, noted today that the it was not right to implead him in the matter. “The utterances are not the only by Bhide, there are also others, right? They might have also stirred the minds of the petitioner. Your claim that cause of action is only because of Bhide’s utterances is not right, we feel”, the Court said.