Extreme point of view is not hate speech: Bombay High Court states while quashing FIR against Sunaina Holey

Merely because the petitioner’s point of view seems extreme, the same does not amount to making a hate speech, the Bombay High Court said on Wednesday while quashing an FIR pertaining to a tweet with alleged communal shades to it.

The Court quashed an FIR registered against Sunaina Holey under Section 153A of the Indian Penal Code (IPC) for allegedly reposting a video with a tweet which allegedly created enmity between two religious groups.

In its order, the Bench of Justices SS Shinde and MS Karnik held that the tweet in question seems to be a hostile point of view, if judged from the point of reasonable and strong minded person point of view.

"State’s approach towards the tweet is hypersensitive and over cautious thereby trying to scent danger in the hostile point of view expressed by Holey," the Court said.

The Court went on to observe,

“The right to express one’s views is a protected and cherished right in our democracy. Merely because the point of view of the Petitioner is extreme or harsh will not make it a hate speech as it is only expressing a different point of view.”

From a bare reading of the contents of the tweet, the Court noted that neither any community nor any religion was named. Further, nothing substantial has been brought on record by the prosecution to hold that because of the said tweet, hatred or enmity was created between two communities.

“If the test of a strong or a prudent person judging the contents of the said tweet is applied, by no stretch of imagination it can be said that the said tweet created hatred or enmity between the two groups of communities,” the order states.

From the documents before it, the Court noted that Holey was not the author of the video and that there was no offence registered against the actual author of the video. Her repost and statement in the post was an expression of her opinion criticising the member in the crowd who blamed Prime Minister Narendra Modi for the outbreak of the COVID-19 pandemic, and merely a disapproval to the viewpoint.

“Assuming that the said tweet is an extreme view expressed in retaliation to the view expressed by one of the member of the crowd who was blaming the Prime Minister of India for the outbreak of the pandemic, the said tweet has still to be judged from the standpoint of what the reaction of a strong minded, reasonable or a prudent person would be,” the Court held.

While accepting the concerns of the State police machinery, the Court found that the act of registration of FIR based on the comments was too far fetched and remote. The Court also expressed that it found it difficult to arrive at the conclusion that Holey had mens rea to commit the alleged offence under Section 153A of the IPC.

"State wants us to read too many things between the lines to come to the conclusion that an offence under Section 153A IPC is made out," the Court expressed.

While parting with its judgment, the Court expressed its appreciation for the police for taking appropriate steps to pacify crowds and keep a close vigil on social media platforms to ensure that the situation remains in control.

“...however, the action of registering the instant FIR, even if all the materials are taken at their face value and accepted do not prima facie constitute any offence or make out a case against the Petitioner,” the Court concluded.

[Read order here]