“Hate-mongers”.
That’s it. That’s the term which has led to an FIR against journalist/fact-checker Mohammed Zubair under Section 295A of the Indian Penal Code and Section 67 of the Information Technology (IT) Act, raising serious concerns about a chilling effect on free speech and the misuse of law.
Those proficient with legal-speak are likely to say “but Section 295A — a very serious, cognisable offence FYI — is for deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs.”
“And Section 67 of the IT Act is essentially applied in cases where “obscene material” is published or transmitted in electronic form.”
So how does mere usage of a term like “hate-mongers” used for specific persons even attract either?
Well, if you're in Uttar Pradesh, it seems that it can if you use it in a tweet, in reference to famous Hindu people like Bajrang Muni, Yati Narsinghanand and Swami Anand Swaroop – regardless of how factually grounded its usage may be.
The FIR Against Zubair and What the High Court Said
The FIR filed against Zubair at Uttar Pradesh’s Khairabad Police Station alleges that on 27 May, the informant in the case, saw a tweet posted by Zubair on his handle, in which he used the 'offensive' term “hate mongers” against “the respected manager of revered religious place Badi Sanghat, P.S. Khairabad and National Patron of National Hindu Sher Sena, Mahant Bajrang Muni Ji.”
“Petitioner also insulted Hindu Yati Narasimha Nar Saraswati and Swami Anand Swaroop on his twitter,” it adds.
Now, it is a different matter that all three of these above-mentioned respected saffron men are reported to have had FIRs filed against them for making hate-speech (in Bajrang Muni’s case, after the National Commission for Women wrote to the UP director general of police about him).
This, along with the copious video evidence of them making objectionable statements, would mean that Zubair’s reference to them as hate-mongers is likely to mean he would win any defamation case filed against him, civil or criminal.
Despite this, the Allahabad High Court deemed it appropriate to refuse to quash the FIR against him for his tweet.
The High Court’s reasons include:
“…it transpires that the entire matter is only at a premature stage and the investigation is not yet proceeded with except some preliminary effort taken on the date of the registration of the case.”
“The evidence has to be gathered after a thorough investigation and placed before the Court concerned on the basis of which alone the Court concerned can come to a conclusion one way or the other on the allegations levelled by the petitioner.”
“…the submissions advanced by the learned Counsel for the petitioner call for determination on questions of fact which may be adequately discerned either through proper investigation or which may be adjudicated upon only by the trial court and even the submissions made on points of law can also be more appropriately gone into only by the trial Court in case a charge sheet is submitted in this case.”
Kumail Haider, Zubair’s lawyer at the Allahabad High Court, however, told The Quint:
“Even assuming whatever has been stated in the FIR is correct, then also the requirement of the Section 295A is not met. “
What Makes an Offence Under Section 295A of IPC?
So what is Section 295A of the IPC supposed to entail?
This section of the IPC unambiguously states:
“Whoever, with deliberate and malicious intention of outraging the religious feelings of any class of insults or attempts to insult the religion or the religious beliefs of that class, shall be punished with imprisonment of either description for a term which may extend to 4 (three years], or with fine, or with both.)”
This means that in order for a case to attract provisions of 295A, there has to be a deliberate and malicious intent to outrage the religious feelings of any class, or to insult any religion. It remains unclear how the use of the word “hate mongers” against any living person attracts the same.
In Ramji Lal Modi vs State of UP, the Supreme Court upheld the validity of Section 295A, but also categorically stated that it:
“Does not penalise any and every act of insult to or attempt to insult the religion or the religious beliefs of a class of citizens but it penalises only those acts of insults to or those varieties of attempts to insult the religion or the religious beliefs of a class of citizens, which are perpetrated with the deliberate and malicious intention of outraging the religious feelings of that class.” (emphasis added)
The judgment goes on to state:
“Insults to religion offered unwittingly or carelessly or without any deliberate or malicious intention to outrage the religious feelings of that class do not come within the section (295A). It only punishes the aggravated form of insult to religion when it is perpetrated with the deliberate and malicious intention of outraging the religious feelings of that class."
The judges in this case, as pointed out in the landmark Shreya Singhal judgment (which struck down a vague anti-speech provision in the IT Act) also held that aggravated forms of insults to religion must have a tendency to disrupt public order.
But how does one glean the intent of somebody else’s words? Once again, the apex court has laid down a test for this.
In Ramesh vs Union of India, the court had held that an “alleged criminal speech should be judged from the standards of reasonable, strong-minded, firm and courageous men, and not those of weak and vacillating minds, nor of those who scent danger in every hostile point of view.”
In Mahendra Singh Dhoni v Yerraguntla Shyamsundar and Another, the apex court had further said: “the Magistrates who have been conferred with the power of taking cognisance and issuing summons are required to carefully scrutinise whether the allegations made in the complaint proceeding meet the basic ingredients of the offence; whether the concept of territorial jurisdiction is satisfied; and further whether the accused is really required to be summoned.”
Even though the court’s directions was addressed to magistrates, the need for careful scrutiny of whether the basic ingredients have been met or not can apply to any and every figure of judicial authority (including the Allahabad High Court which refused to quash Zubair’s case).
In the Arnab Goswami case, the Supreme Court specifically said that when faced with a petition for quashing, the high courts have a duty to see if the allegations against a person prima facie fit the offence in the FIR against them.
In that case, where the Republic TV editor was accused of abetment of suicide, the Bombay High Court failed to actually see if the allegations against him disclosed an offence and refused to grant him interim bail. The apex court held that this failure meant that:
“The High Court was clearly in error in failing to perform a duty which is entrusted to it while evaluating a petition under Section 482 albeit at the interim stage.”
This is of even greater consequence when it comes to FIRs involving Section 295A, since in a deeply religious country like India it can be easily misconstrued (or misused?) to incorporate almost any act of insult –regardless of whether it is an aggravated form of insult that may have a tendency to disrupt public order or not.
Is Even Section 67 of the IT Act Applicable?
Moving on to the other charge that Zubair has been slapped with — Section 67 of the IT Act, penalises publishing or transmitting “in the electronic form, any material which is lascivious or appeals to the prurient interest or if its effect is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it.” (emphasis added)
It is incredibly difficult to see how Zubair’s tweet – that these people are (in his opinion) hate-mongers – was lascivious or tending to deprave those who read it.
As the wording of the IT Act suggests, this section is attracted in cases such as those of obscenity or pornography or, given we're talking about India here, when somebody thinks the web-show they watch during dinner-time is too overtly sexual in nature.
But maybe there really is something lascivious about the word “hate-monger”. Hmmm…Is it the shape of the word? Is the way it sounds? Is it the way it looks on Twitter? One can only wonder…
It is worth mentioning that the Supreme Court had struck down Section 66A of the IT Act in 2015 on the grounds that it was violative of the right to freedom of speech guaranteed under Article 19 (1)(a) of the Constitution of India.
That specific section could be used to penalise any online message believed to have been sent for the purpose of causing "annoyance" or "inconvenience". Thus, it was easily prone to misuse.
But with Section 66A gone, Section 67 has over the years become the go-to random default IT Act offence misapplied to curb criticism of powerful people and groups.
This is not something which involves any need for a further investigation: the allegation is limited to a single tweet, which means the court has to see if the text of the tweet discloses the basic ingredients of the offences Zubair has been accused of.
Nonetheless, we are in a situation where the courts will have to mull over the intent behind Zubair’s tweet and the prosecution will have to attempt to prove how his speech has a tendency to disrupt public order and is also, at the same time, somehow lascivious.
In the meanwhile, as his lawyer in the high court notes:
“There are no grounds to justify the registration of the impugned FIR, and the investigation pursuant to it is likely to cause unjustified harassment to Zubair.”
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