VINOD DUA versus UNION OF INDIA & ORS.
[2021] 12 S.C.R. 1071, Supreme Court of India, 2021
Outcome: Case Partly allowed (Granted)
Segment: Facts
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VINOD DUA
v.
UNION OF INDIA & ORS.
(Writ Petition (Crl.) No. 154 of 2020)
JUNE 03, 2021
[UDAY UMESH LALIT AND VINEET SARAN, JJ.]
Constitution of India: Art. 32 – Quashing of FIR under – On
facts, FIR against petitioner-renowned journalist u/ss. 124-A, 505,
501, 268 for some statements made by him in his talk show on social
media about handling of the Covid Pandemic; and that the Prime
Minister has used deaths and terror attacks to garner votes – Act is
of instigating violence against the government and the Prime
Minister, and creating panic amongst the public and disturbing the
public peace by trying to spread false information – Petition u/Art.
32 by the petitioner for quashing of FIR and seeking directions for
protection of journalists – Held: All the offences set out in the FIR
not made out – Citizen has a right to criticize or comment upon the
measures undertaken by the Government and its functionaries, so
long as he does not incite people to violence against the Government
or with the intention of creating public disorder – ss. 124A and 505
comes into play only when the words or expressions have pernicious
tendency or intention of creating public disorder or disturbance of
law and order – Statements at best can be termed as expression of
disapprobation of actions of the Government and its functionaries
– They were not made with the intent to incite people or showed
tendency to create disorder or disturbance of public peace by resort
to violence –
Statements attributed to petitioner that Prime Minister
used deaths and terror attack to garner votes not made in the Talk
Show –  Thus, prosecution of the petitioner for the offences
punishable u/ss. 124A and 505 (1)(b)  unjust and violative of its
rights guaranteed u/Art. 19(1)(a) – Furthermore, offences u/ss. 501
and 268 not made out, as also offences punishable u/ss. 52 and 54
of the Disaster Management Act, 2005 and s.188 IPC – As regards,
prayer that no FIR be registered against a person belonging to
media with at least 10 years of standing unless cleared by the
Committee as suggested, the constitution of the Committee is  outside
[2021] 12 S.C.R. 1071
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the scope of the statutory framework, and any relief granted in
terms thereof  would amount to encroachment upon the field reserved
for the legislature – Thus, FIR quashed, however, prayer for the
constitution of the Committee rejected – Separation of powers –
Penal Code, 1860 – ss.124-A, 505, 501, 268.
Penal Code, 1860: s. 124A – Sedition – Applicability of s.
124A, when – Explained in terms with the *Kedar Nath Singh vs.
State of Bihar’s case.
Partly allowing the writ petition, the Court
HELD: 1.1 The FIR against the petitioner is quashed; but
the prayer that no FIR be registered against a person belonging
to media with at least 10 years of standing unless cleared by the
Committee as suggested, is rejected. [Para 68][1177-C-D]
1.2 The practice of directing that the High Court be
approached first even in cases of violation of fundamental rights,
is more of a self- imposed discipline by this Court; but in glaring
cases of deprivation of liberty, this Court has entertained petitions
under Article 32 of the Constitution. Apart from the fact that the
right claimed by the petitioner is one under Article 19 (1) (a) of
the Constitution, the second prayer made by the petitioner can
effectively be considered only in a writ petition. Going by the
nature of the second prayer, relegating the petitioner to file a
petition under Article 226 of the Constitution, may not be
appropriate. Rather, the issue must ideally be settled by
this Court. Consequently, the preliminary objection raised by
the respondents is not accepted. [Paras 24-25][1106-G-H;
1107-D-F]
Romesh Thappar  v. The State of Madras [1950] SCR
594; Jagisha Arora vs. State of Uttar Pradesh and
Another (2019) 6 SCC 619; Priya Prakash Varrier and
Others vs. State of Telangana and Another (2019) 12
SCC 432:[2018] 10 SCR 615; Amish Devgan vs. Union
of India and Others (2021) 1 SCC 1:2020 (12) JT 300
– referred to.
1.3 On facts, it has been established that the statements
attributed to the petitioner that the Prime Minister had used
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deaths and terror attacks to garner votes or that the Prime
Minister had garnered votes through acts of terrorism, were not
made in the Talk Show. The true translation of the original episode
in Hindi, has been placed on record. No such assertions find place
in the true translation nor were any objections raised that the
translated version was in any way incorrect. The petitioner did
say that the air strikes by India on Balakot and attacks on
Pathankot and Pulwama were used as political events to garner
votes but no allegations were made against the Prime Minister
as was stated in the F.I.R. It is true that some of the portions of
the Talk Show do assert that there were not enough testing
facilities; that there was no information as to the quantum of PPE
kits/ suits, N95 masks, and masks of three ply that were available
in the country; that the respiratory devices and sanitizers were
being exported till 24th March (2020) instead of keeping them
for use in the country; that the supply chains got disrupted due
to blockage of roads; and that the migrant workers was a huge
issue. It was also asserted that with supply chains being closed,
some people had feared food riots, which had not happened in
the country. [Para 27][1108-C-G]
1.4 Leaving aside two incorrect statements made in the
FIR, the following assertions from the talk show are relied upon
to state that the offences as alleged are made out:
(i) The statement in the talk show are that it is common
knowledge that the countries all over the world found themselves
wanting in terms of infrastructure and facilities to cope up with
the effects of Covid-19 Pandemic. Considering the size of the
population of this country, the testing facilities to gauge and check
the spread and effect of the Pandemic, at least in the initial stages
of the surge, were not exactly adequate. If in that light, the
petitioner made any comments about testing facilities or PPE
Suits, N-95 masks and masks of 3 ply, those comments in first
two statements, cannot be anything other than appraisal of the
situation then obtaining. It was not even the case of the
respondents that these two statements were factually incorrect.
(ii) The submission of the respondents was that the ban on
export of ventilator and sanitizers was imposed on 19.03.2020
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and the said statement was therefore not quite correct. It was
also submitted that the petitioner produced no evidence of actual
exports before the ban was imposed on 19.03.2020 and that there
were no exports immediately proceeding the imposition of ban.
(iii) The effect of Nation-wide lockdown which came into
effect from the midnight intervening 24.03.2020 and 25.03.2020,
according to the petitioner, resulted in disruption of supply chains
due to blockage of roads. It was the submission of the respondents
that by Consolidated Guidelines issued on 28.03.2020 (which was
stated to be an order under Section 188 IPC), adequate steps
were directed to be taken to ensure that there was no disruption
in supply of essential goods. It must be stated that the fourth
statement did acknowledge that the transportation of essential
goods was being allowed and, in that sense, it was more or less
correct depiction of the state of affairs then prevailing.
(iv) It was submitted that statements regarding food riot
not only gave factually incorrect information but amounted to incite
the general public and that it was because of such incorrect
information, the movement of migrant workers had begun. On
the other hand, reliance was placed by the petitioner on the
interview of former Chief Statistician reported on 28.03.2020 that
if food requirements of migrant workers were not fulfilled amid
countrywide lockdown, food riots could be a real
possibility. It
was submitted that by the time the talk show was uploaded, the
movement of migrant workers had already started and was at the
peak. [Paras 38 and 39][1144-F-G; 1145-F-H; 1146-A-F]
1.5 What was prevailing on 30.03.2020 was therefore clear
and migrant workers in huge numbers were moving towards their
hometowns/villages. In the circumstances, there would naturally
be some apprehension about the shelter and food to be provided
to them en-route. The former Chief Statistician had expressed a
possibility with the intent to invite the attention of the authorities.
If the petitioner in his talk show uploaded on 30.03.2020, that is
even before the matter was taken up by this Court, made certain
assertions in his statements, he would be within his rights to say
that as a Journalist he was touching upon issues of great concern
so that adequate attention could be bestowed to the prevailing
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problems. It cannot be said that the petitioner was spreading any
false information or rumours. It is not the case of the respondents
that the migrant workers started moving towards their
hometowns/villages purely as a result of the statements made by
the petitioner. Such movement of migrant workers had begun
long before. In the circumstances, these statements can neither
be taken to be an attempt to incite migrant workers to start
moving towards their hometowns or villages nor can it be taken
to be an incitement for causing any food riots. The situation was
definitely alarming around 30.03.2020 and as a journalist if the
petitioner showed some concern, could it be said that he
committed offences as alleged. [Para 42][1149-A-E]
1.6 A citizen has a right to criticize or comment upon the
measures undertaken by the Government and its functionaries,
so long as he does not incite people to violence against the
Government established by law or with the intention of creating
public disorder; and that it is only when the words or expressions
have pernicious tendency or intention of creating public disorder
or disturbance of law and order that Sections 124A and 505 IPC
must step in. The statements by the petitioner, if read in the light
of the principles emanating from the decision in Kedar Nath
Singh’s case and against the backdrop of the circumstances when
they were made, can at best be termed as expression of
disapprobation of actions of the Government and its
functionaries
so that prevailing situation could be addressed quickly and
efficiently. They were certainly not made with the intent to incite
people or showed tendency to create disorder or disturbance of
public peace by resort to violence. The petitioner was within the
permissible limits laid down in the decision of this Court in Kedar
Nath Singh’s case. It may be that certain factual details regarding
the date when the ban came into effect were not completely
correct. However, considering the drift of the entire talk show
and all the statements put together it cannot be said that the
petitioner crossed the limits set out in the decision of this Court
in Kedar Nath Singh’s case. Thus, the prosecution of the petitioner
for the offences punishable under Sections 124A and 505 (1) (b)
IPC would be unjust. Those offences, going by the allegations in
the FIR and other attending circumstances, are not made out at
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all and any prosecution in respect thereof would be violative of
the rights of the petitioner guaranteed under Article 19(1)(a) of
the Constitution. [Para 43, 44][1149-E-H; 1150-A-D]
*Kedar Nath Singh vs. State of Bihar (1962) Supp. 2
SCR 769 – followed.
1.7 The other offending provision referred to in the FIR is
Section 501 IPC which is printing or engraving a matter which is
defamatory to any person. As a matter of fact, the cognizance
with respect to an offence punishable under Chapter XXI IPC
(Section 501 IPC is part of said Chapter) can be taken by a Court
only upon a complaint made by the person aggrieved. Without
going into such technicalities, there is nothing defamatory in the
statements made by the petitioner. Further, the statements of
the petitioner would be covered by the second and third
exceptions to Section 499 IPC. Thus, the instant proceedings, in
so far as Section 501 IPC is concerned, also deserve to be
quashed. [Para 45][1150-D-G]
Jawaharlal Darda and Others vs. Manoharrao
Ganpatrao Kapsikar and Another (1998) 4 SCC 112;
Rajendra Kumar Sitaram Pande  and Others vs. Uttam
and Another (1999) 3 SCC 134 : [1999] 1 SCR 580;
Vivek Goenka and Others vs. Y.R. Patil (2000) 9 SCC
87; S. Khushboo vs. Kanniammal and Another (2010)
5 SCC 600:[2010] 5 SCR 322 – relied on.
1.8 The other provision referred to in the FIR was s. 268
IPC which is nothing but the definition of “Public Nuisance” and
is not a penal
provision in itself which prescribes any punishment.
It was also not the case of the respondent that any penal provision
involving element of “Public Nuisance” was attracted in the
instant case. Thus, all the offences set out in the FIR are not
made out at all. [Paras 46, 47][1150-G; 1151-A-B]
1.9 As regard to the offences which were not spelt out in
the FIR, it was contended by the respondents that in addition to
the offences specifically set out in the FIR, the petitioner would
also be guilty of the offences punishable under Sections 52 and
54 of the Disaster Management Act, 2005 and Section 188 IPC.
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According to the respondents, the statements made by the
petitioner during the Talk Show amounted to circulating a false
alarm and would therefore be covered by Section 54 of the
Disaster Management Act, 2005; and that the petitioner would
also be guilty of having violated communications dated 24.3.2020
and 28.3.2020 and thereby committed offences under Section 188
IPC. The technical issue need not be gone into whether the
initiation of the proceedings in respect of the offences punishable
under DM Act and/or under Section 188 IPC could only be after
an appropriate complaint would be made in writing as submitted
by the petitioner, as none of these offences as submitted by the
respondents get attracted in the instant matter. The statements
made by the petitioner were within the limits prescribed by the
decision of this Court in Kedar Nath Singh’s case  and that the
statements were without any intent to incite people for creating
public disorder. It was not even suggested that as a result of
statements made by the petitioner any situation of panic had
resulted in any part of the country. In the circumstances, without
going into the technicalities whether the initiation of the
proceedings could only be through a complaint filed in conformity
with Section 60 of the Disaster Management Act, 2005 or Section
195 of the Code, the provisions of the Disaster Management
Act, 2005 or Section 188 IPC are not attracted at all. [Paras 48,
51, 52][1151-B-D; 1152-C-D;
1153-A-C]
*Kedar Nath Singh vs. State of Bihar (1962) Supp. 2
SCR 769 – followed.
1.10 The second prayer made in the Writ Petition is asking
for the constitution of the Committee completely outside the
scope of the statutory framework. Similar such exercise of
directing constitution of a Committee was found inconsistent with
the statutory framework in the decisions discussed. The directions
issued in Jacob Mathew’s case had received approval by a
Constitution Bench in Lalita Kumari’s case, but those guidelines
issued in Jacob Mathew’s case stand on parameter which are
completely distinguishable from the subsequent decisions of three
Judge Bench of this Court in Union of India vs. State of
Maharashtra and Others and in Social Action Forum for Manav
Adhikar and Another vs. Union of India, Ministry of Law and Justice
VINOD DUA v. UNION OF INDIA & ORS.
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and Others. Any relief granted in terms of second prayer would
certainly amount to encroachment upon the field reserved for
the legislature. Therefore, the prayer is rejected and the Writ
Petition is dismissed to that extent. It must however be clarified
that every Journalist would be entitled to protection in terms of
Kedar Nath Singh’s case, as every prosecution under Sections
124A and 505 IPC must be in strict conformity with the scope
and ambit of said Sections as explained in, and completely in tune
with the law laid down in Kedar Nath Singh’s case. [Paras 66,
67][1176-F-H; 1177-A-C]
Jacob Mathew’s case v. State of Punjab and Another
(2005) 6 SCC 1:[2005] 2 Suppl. SCR 307; Lalita
Kumari’s case v. Government of Uttar Pradesh and
Others (2014) 2 SCC 1:[2013] 14 SCR 713; Arnab
Ranjan Goswami vs. Union of India and Others (2020)
14 SCC 12:[2020] (8) SCR 222; Arnab Ranjan
Goswami vs. Union of India and Others (2020) 14 SCC
51; State of H.P. vs. Pirthi Chand and Another (1996) 2
SCC 37:[1995] 6 Suppl. SCR 29; State of UP vs. OP
Sharma (1996) 7 SCC 705:[1996] 2 SCR 236; Vijay
Shekhar and Another vs. Union of India and Others
(2004) 4 SCC 666; Rini Johar and Another vs. State of
Madhya Pradesh and Others (2016) 11 SCC 703:[2016]
5 SCR 579; Monica Kumar and Another vs. State of
Uttar Pradesh and Others (2017) 16 SCC 169:[2017]
8 SCR 550; Laxmibai Chandaragi B. and Another vs.
State of Karnataka and Others (2021) 3 SCC
360; Ramji
Lal Modi vs. State of U.P AIR (1957) SC 620:[1957]
SCR 860; Daryao and others v. The State of U.P. and
others [1962] 1 SCR 574; Union of India vs. Paul
Manickam and Another (2003) 8 SCC 342:[2003] 4
Suppl. SCR 618; Kedar Nath Singh’s case v. State of
Bihar Bangobashi case (Queen Empress v. Jogendra
Chunder Bose (1892) I.L.R. 19 Cal. 35; Queen-Empress
v. Balgangaddhar Tilak (1898) I.L.R. 22 Bom. 112;
Balgangadhar Tilak vs. Queen Express, (1897) L.R.
25 I.A.I.; Niharendu Dutt Majumdar v. The King
Emperor (1942) F.C.R. 38; King Emperor vs., Sadashiv
Narayan Bhalerao
74 IA 89;
Indian Express
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Newspapers (Bombay) Private Ltd. & Ors. vs. Union of
India & Ors (1985) 1 SCC 641:[1985] 2 SCR 287;
S. Rangarajan v. P. Jagjivan Ram & Ors. 1989 (2) SCC
574:[1989] 2 SCR 204; The Superintendent, Central
Prison, Fatehgarh and another v. Dr. Ram Manohar
Lohia AIR 1960 SC 633:[1960] SCR 821; State of
Haryana and Others vs. Bhajan Lal and Others (1992)
Suppl 1 SCC 335:[1990] 3 Suppl. SCR 259; Manzar
Sayeed Khan vs. State of Maharashtra and Another
(2007) 5 SCC 1:[2007] 4 SCR 907; Patricia Mukhim
vs. State of Meghalaya and Others 2021 SCC OnLine
SC 258; Daulat Ram v. State of Punjab AIR 1962 SC
1206:[1962] Suppl. SCR 812; C. Muniappan and
Others v. State of Tamil Nadu (2010) 9 SCC 567:[2010]
10 SCR 262; P. Sirajuddin’s Etc. vs. State of Madras,
Etc. (1970) 1 SCC 595:[1970] 3 SCR 931; Union of
India v. State of Maharashtra and others (2020) 4 SCC
761:[2019] 12 SCR 1125; Social Action Forum For
Manav Adhikar and another v. Union of India, Ministry
of Law and Justice and others (2018) 10 SCC
443:[2018] 12 SCR 19; Rajesh Sharma’s and others v.
State of Uttar Pradesh and another (2018) 10 SCC
472:[2017] 9 SCR 529; Dr. Subhash Kashinath
Mahajan’s v. State of Maharashtra and another (2018)
6 SCC 454: [2018] 4 SCR 877 – referred to.
Case Law Reference
[2005] 2 Suppl. SCR 307
referred to
Para 10
[2013] 14 SCR 713
referred to
Para 10
(2020) 14 SCC 12
referred to
Para 18
(2021) 1 SCC 1
referred to
Para 19
[1995]  6 Suppl. SCR 29
referred to
Para 19
[1996]  2 SCR 236
referred to
Para 19
(2004) 4 SCC 666
referred to
Para 19
[2016] 5 SCR 579
referred to
Para 19
[2017] 8 SCR 550
referred to
Para 19
VINOD DUA v. UNION OF INDIA & ORS.

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[2018] 10 SCR 615
referred to
Para 19
(2021) 3 SCC 360
referred to
Para 19
[2003] 4 Suppl. SCR 618
referred to
Para 20
[1950] SCR 594
referred to
Para 21
[1962] 1 SCR 574
referred to
Para 22
(2019) 6 SCC 619
referred to
Para 23
[2003] 4 Suppl. SCR 618
referred to
Para 24
(1892) I.L.R. 19 Cal. 35
referred to
Para 28.2
(1898) I.L.R. 22 Bom. 112
referred to
Para 28.2
(1942) F.C.R. 38
referred to
Para 28.4
[1985]  2 SCR 287
referred to
Para 34a
[1989]  2 SCR 204
referred to
Para 34 B
[1960] SCR 821
referred to
Para 35
[1990]  3 Suppl. SCR 259
referred to
Para 36
[2007] 4 SCR 907
referred to
Para (36 a)
(1962) Supp. 2 SCR 769
followed
     Para 43, 51, 67
(1998) 4 SCC 112
relied on
Para 45
[1999]  1 SCR 580
relied on
Para 45
(2000) 9 SCC 87
relied on
Para 45
[2010]  5 SCR 322
relied on
Para 45
[1962] Suppl. SCR 812
referred to
Para 49
[2010] 10 SCR 262
referred to
Para 49
[1970] 3 SCR 931
referred to
Para 59
[2019] 12 SCR 1125
referred to
Para 60
[2018] 12 SCR 19
referred to
Para 60
[2017] 9 SCR 529
referred to
 Para 61
[2018] 4 SCR 877
referred to
 Para 63
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CRIMINAL ORIGINAL JURISDICTION : Writ Petition (Crl.)
No. 154 of 2020.
(Under Article 32 of the Constitution of India)
Vikas Singh, Sr. Adv., Varun Singh, Nitin Saluja, Ms. Deepeika
Kalia, Kapish Seth, Akshay Dev, Ms. Deepti Arya, Rishabh Rana,
Mritunjay Singh, Satwik Mishra, Advs. for the Petitioner.
Tushar Mehta, SG., S.V.  Raju, ASG., Vikas Mahajan, AAG.,
Mahesh Jethmalani, Vinay Navare, Sr. Advs., B.V. Balaram Das, Ms.
Kanu Agrawal, Vinod Sharma, Neeraj, Ms. Siya Chaudhary, Ravi Sharma,
Satya Ranjan Swain, Shoumendu Mukherjee, Vijay Joshi, Himanshu
Pathak, Ms. Priya Mishra, Ms. Damini Garg, Ms. Vandana Deewan,
Surender Kumar Gupta, Advs. for the Respondents.
The Judgment of the Court was delivered by
UDAY UMESH LALIT, J.
1. This petition under Article 32 of the Constitution of India prays
for following principal reliefs:-
“a.
Quash FIR No.0053 dated 06.05.2020
registered at Police Station Kumarsain, District
Shimla, Himachal Pradesh.
 b.
Direct that henceforth FIRs against persons
belonging to the media with at least 10 years
standing be not registered unless cleared by a
committee to be constituted by every State
Government, the composition of which should
comprise of the Chief Justice of the High Court
or a Judge designated by him, the leader of the
Opposition and the Home Minister of the State.”
2. FIR No.0053 dated 06.05.2020 was registered pursuant to
Complaint made by respondent No.3 herein to the following effect:-
“On 30th March, 2020, Mr.
Vinod Dua, in his show namely The
Vinod Dua Show on YouTube, has made unfounded and bizarre
allegations (details of particular moments are provided below) by
stating following facts at 5 minutes and 9 seconds of the video, he
has stated that Narendra Modi has used deaths and terror attacks
to garner votes.  At 5 minutes and 45 seconds of the video, he
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claims that the government does not have enough testing facilities
and has made false statements about the availability of the Personal
Protective Kits (PPE) and has stated that there is no sufficient
information on those.  Further, he also went on to state that
ventilators and sanitizer exports were stopped only on 24th March
2020.  A true copy of the video link is: https:/ /www.youtube.com/
watch?vvijFD_tgvv8.  That the said allegations are false and the
claims are bizarre and unfounded.  Mr. Vinod Dua has spread
false and malicious news by stating that the PM has garnered
votes through acts of terrorism.  This directly amounts to inciting
violence amongst the citizens and will definitely disturb public
tranquillity.  This is an act of instigating violence against the
government and the Prime Minister.  He also creates panic amongst
the public and disturbs public peace by trying to spread false
information, such as, the government does not have enough testing
facilities which is absolutely false.  The government has sufficient
facilities to curb the pandemic and have been taking all the
measures to control the pandemic.  By making such false
statements, Mr. Vinod Dua spread fear amongst the people.  This
video will only create a situation of unrest amongst the public
which will result in panic and people not obeying the lockdown to
come out and hoard essentials which is absolutely unnecessary.
Mr. Vinod Dua has
circulated these rumours with the intent to
defeat the Lockdown by creating an impression that there is a
complete failure of the institution and it will become hard to survive
this lockdown, if not acted upon immediately.  It is unfortunate
that during such a pandemic, which is of such a magnitude, instead
of helping out the citizens and encouraging them to stay at home,
the show and the host, Mr. Vinod Dua, is only interested in raising
his show’s TRP and making it successful.  The rumours were
spread with intent to cause, or which is likely to cause, fear or
alarm to the public or to any section of the public, whereby any
person may be induced to commit an offence against the state or
against the public tranquillity.  Since the matter relates to Public
health, considering the gravity and seriousness of the matter, this
dishonest and fraudulent act of the Mr. Vinod Dua should be taken
with utmost seriousness.  The aforesaid act of Mr. Vinod Dua is
an offence punishable under Sections 124-A, 268, 501 and 505 of
the Indian Penal Code, 1860 (IPC).  Unless strict action is taken,
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it will result in unrest in public and go against public tranquillity.
Hence, you are requested to take strict appropriate legal action
against Mr. Vinod Dua and punish him accordingly.”
3. The FIR dated 06.05.2020 thus pointedly referred to two
segments in the talk show uploaded on 30.03.2020 – one at 5 minutes 9
seconds and the other at 5 minutes 45 seconds and generally dealt with
the drift of the assertions made by the petitioner in said talk show to
submit that the actions on part of the petitioner amounted to offences
punishable under penal provisions referred to in the FIR. The transcript
of the relevant episode of the talk show has been placed on record and
the translation of the relevant portions is :-
“At present I am talking about the ongoing corona virus and
whatever has happened in its context – how was our preparedness,
when we were alerted and despite which why we were in slumber.
When I refer to WE then I refer to the government.  I present a
small analysis on which a few things have been stated by P.
Chidambaram in an article in the Indian Express, some of this we
have also seen and you understand all of the rest very well.   …..
Now, the national lockdown, desh bandhi, note bandhi, GST are
the three big events.  Our work as media, we do not stoop, we are
not darbari, we are not from the government, our job is not to
denigrate, our job is not also to criticize, our job is to do critical
appraisal of government’s work. We do not need
anything from
the government or anyone’s complaisance.  Media has to do this
work but unfortunately most of the media is towing the line of the
government or their stoogas.  They look for support in everything
to turn everything into an event of the Pradhan Sewak and to tout
that as a big success.  In the case of attacks on India on Pathnakot
and Pulwama the same were used as political events to garner
votes, surgical strikes were also used as gain politically.  The air
strikes by India on Balakot were also used as means of getting
votes.  To seek votes by turning everything into an event has
become the hallmark of this government, this is our call of duty
and our dharma to present these before you, so we are saying
these.
Further, our biggest failure has been that we do not have enough
facilities to carry out testing. Undoubtedly, ICMR and Health
Ministry maintain that corona in India is still in 2nd stage and has
VINOD DUA v. UNION OF INDIA & Ors.
[UDAY UMESH LALIT, J.]
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not reached in 3rd stage when community transmission takes place.
At the present juncture India needs 7 lakh PPE suits, 6 lakh N95
masks and 8 crore masks of three ply.  Till now we do not have
any information how many we have and how many will become
available by when.  The ventilators needed in other countries and
in India, respiratory devices and sanitizers were being exported
till 24 March instead of keeping these for use in our country.  Supply
chains got disrupted due to blockage of roads and now it is being
heard that transportation of essential goods has been allowed.  It
is not difficult to imagine that when the supply chains have been
closed, when the shops are closed, some people had gone to the
extent of fearing food riots which have not happened in our country
could happen.  Therefore the government is now taking steps
which should have been taken at least 15 days earlier.  On 11
February, ICMR had forewarned, later Rahul Gandhi did the same
by writing a letter on 12 February and again 13 February but the
government kept sleeping.
Now, the migrant labour which is a huge issue, the people who
leave their distant villages to earn their livelihoods here, who are
the backbone of the cities, who help in running our lives, our drivers,
our daily wagers, construction workers, tailors, all those who do
small odd jobs and somehow send money back home.  There are
certain states like Bihar which also run on money
order economy
where it caused huge disruption and who started returning home.
When people started returning from Mumbai on 10 March, that
should have been a big signal for the government about the effect
the complete lockdown in the whole country can bring about but
no lessons were learnt.  Besides, police did not get any instructions
about how to handle this, the face of brutality and inhumanity of
the police was seen and now the face of the police is also seen
while distributing food and also their face of shaming those not
following the lockdown.  These steps could have been taken earlier
also because using force is not the only way of the police.
4. Certain factual developments that occurred after the registration
of the FIR were noted in the Order dated 14.06.2020 passed by this
Court as under:-
“A Notice for Appearance dated 11.06.2020 was issued by the
office of Station House Officer, Police Station Kumarsain, District
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Shimla, Himachal Pradesh, under Section 160 Cr.P.C. to the
following effect:
“A Case FIR No.53/2020 Dated 06.05.2020 U/s 124A, 268,
501, 505 IPC has been registered in Police Station Kumarsain,
Distt. Shimla, HP on the complaint of Sh. Ajay Shyam, Vill &
PO Kiara, Tehsil Theog, Distt. Shimla HP against (You) Mr.
Vinod Dua Journalist, HW News Network. In above said case
your presence is required for interrogation.
So you are therefore directed to join investigation at Police
Station Kumarsain on or before 13/06/2020 at 10 am sharp.”
A response to the above notice was sent by the petitioner on
12.06.2020 stating inter alia:
“I have received your notice dated 11.06.2020 seeking my
physical presence for the interrogation of FIR dated 06.05.2020,
on 13.06.2020 before the police station in Kumarsain, Himachal
Pradesh.
I wish to bring to your notice as per Himachal Pradesh covid
guidelines dated 11.05.2020, any person coming from the red
zone is directed to be in institutional quarantine for a period of
14 days. Since I reside in New Delhi which is currently a red
zone, I would be forced to be in quarantine for a period of 14
days.
Further, I wish to bring to your kind notice that I am 66 plus
years old. Therefore, as per MOH guidelines, all citizens of 65
plus age are asked not to travel due to health safety risks.
Further I suffer from Thalassemia minor with Iron deficiency
anaemia, pancytopenia (low red & white blood cell and low
platelet count), chronic
liver disease with portal hypertension
& splenomegaly, diabetes and hypothyroidism. I also have
oesophageal varices with a high risk of bleeding. Therefore
doctors have stated that stepping out of my house would be
life endangering. I am attaching my medical certificate
herewith.
Meanwhile, I would join the investigation through email or any
other online mechanism.”
VINOD DUA v. UNION OF INDIA & Ors.
[UDAY UMESH LALIT, J.]
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While issuing notice in the petition, the Order dated 14.06.2020
recorded further: -
“Mr. Vikas Singh, learned Senior Counsel appearing for the
petitioner submitted that the Himachal Pradesh Police had
contacted the petitioner day before yesterday in connection with
the investigation in the crime referred to above.
Considering the circumstances on record, we deem it appropriate
to direct as under:
(a) Pending further orders, the petitioner shall not be arrested in
connection with the present crime;
(b) However, the petitioner in terms of the offer made by him in
his communication dated 12.06.2020, shall extend full cooperation
through Video Conferencing or Online mode; and
(c) The Himachal Pradesh Police shall be entitled to carry on the
investigation including interrogation of the petitioner at his residence
after giving him prior notice of 24 hours and complying with the
Social Distancing norms prescribed during Covid-19 Pandemic.
The affidavit in reply filed on behalf of the State shall indicate the
steps taken during investigation and a complete Status Report
shall be filed before the next date of hearing. The concerned
Investigating Officer shall remain personally present in case the
open Court hearing is resumed by this Court or shall be available
in case the proceedings are taken up through Video Conferencing
mode.”
5. Some of the grounds raised in the instant writ petition relating
to the prayers quoted
hereinabove are:
“A. Because the contents in the video is pure and simple critical
analysis by the Petitioner of the functioning of the Government
and cannot by any stretch of imagination be said to be offences
under Sections 124-A, 268, 501, 505 of IPC.
B. Because the decisive ingredient for establishing the offence of
sedition under Section 124-A IPC is the doing of certain acts which
would bring to the Government established by law in India hatred
or contempt etc. which would incite violence or create public
disorder.  In the present case, there is not even a suggestion that
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the Petitioner did anything against the Government of India or
any other Government of the State.
R. Because seeking quashing of the FIR dated 06.05.2020 is part
prayer, the petitioner through this petition is also seeking guidelines
from this Hon’ble Court in respect of lodging of FIRs against
persons belonging to the media of a particular standing as done in
the case of medical professionals vide judgment in Jacob Mathew
v. State of Punjab (2005) 6 SCC 1 para 51, 52 affirmed by the
Constitution Bench Judgment in Lalita Kumari v. Government of
Uttar Pradesh and others (2014) 2 SCC 1 para 115.”
6. The affidavit in reply filed on behalf of the State referred to
Sections 52 and 54 of the DM Act1 as under:
“At this juncture, it may be noticed that the entire world is passing
through an unprecedented international crises in the form of a
pandemic. India also is no exception. In case of a pandemic, any
false news necessarily have a tendency of creating panic and,
therefore, the Disaster Management Act provides for certain
offences and penalties. Sections 52 and 54 of the Disaster
Management Act read as under:-
“Section 52. Punishment for false claim.-
Whoever knowingly makes a claim which he knows or has
reason to believe to be false for obtaining any relief, assistance,
repair, reconstruction or other benefits consequent to disaster
from any officer of the Central Government, the State
Government, the National Authority, the State Authority or the
District
Authority, shall, on conviction be punishable with
imprisonment for a term which may extend to two years, and
also with fine.
Section 54. Punishment for false warning.-
Whoever makes or circulates a false alarm or warning as to
disaster or its severity or magnitude, leading to panic, shall on
conviction, be punishable with imprisonment which may extend
to one year or with fine.”
Thereafter, the affidavit indicated following steps taken by the
Investigating machinery:
1 The Disaster Management Act, 2005
VINOD DUA v. UNION OF INDIA & Ors.
[UDAY UMESH LALIT, J.]
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“Having found that complaint disclosed cognizable offence, the
FIR was registered.  In respectful submission of the respondent,
since a FIR discloses prima facie commission of cognizance
offence, no interference may be warranted.
That after registration of FIR, on 07.05.2020 the complainant was
called in the Police Station but he did not appear as he was out of
station.  On 08.05.2020 complainant joined the investigation in the
Police Station and produced one DVD containing telecast dated
30.03.2020 as referred in the FIR which was taken into possession
by the Investigating Officer through seizure memo and statement
of Sh. Ajay Shyam was recorded u/s 161 Cr.P.C.
That on 11.05.2020, Investigating Officer visited Cyber Crime
Police Station from where Notice u/sec 91 Cr.P.C. was sent to
Google and YouTube through e-mail for obtaining information in
respect to URL of the channel and URL of the post.”
7. The original complainant (Respondent No.3) stated in his
response as under:
“It is submitted that, on 30.03.2020, the petitioner in his show,
‘The Vinod Dua Show’ telecasted on You Tube in Episode No.255
made false allegations regarding preparedness for the pandemic
Covid-19 which were clearly in violation of Sections 124-A, 268,
501 and 505 IPC.  The entire content/transcript of the episode
has been reproduced in the Writ Petition at pages 45 onwards at
Annexure A-2.
It is submitted that, on 21.04.2020, when the
respondent was
surfing on the internet on his mobile that, he had the occasion to
watch the said alleged video of the petitioner.  He strongly felt
that the contents of the video had a tendency to create disturbance
of public peace against the government established by law.
……
It is submitted that, in the present case, prima facie the offences
u/s 124-A, 268, 501 and 505 of the IPC are clearly made out and
more serious offences will emerge once the material supplied by
the answering respondent is investigated, and therefore, there is
no ground for quashing the present FIR.  If the statements in the
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video are seen in its entirety, then the mala fide intention of the
petitioner is apparent and all is being said to incite people and
create disaffection and hatred in the minds of the people against
the Government of India and that too during these difficult times
of pandemic Covid-19.”
Respondent No.3 then referred to the other episodes of talk show
of the petitioner uploaded on 02.03.2020, 31.03.2020, 01.04.2020 and
01.06.2020 to emphasize the alleged tendency on part of the petitioner
of making statements which were devoid of truth.
8. The Status Report placed for perusal of this Court in pursuance
of the order dated 14.06.2020, inter alia, gave details about HW News
owned by Theo Connect Private Ltd.
9. Appearing for the petitioner, Mr. Vikas Singh, learned Senior
counsel submitted: -
A) The statements in the FIR that, “Hon’ble Prime Minister used
threats and terror acts to garner votes”; and “Prime Minister garnered
votes through act of terrorism” were factually incorrect. No such
assertions were made by the petitioner.
B) The basic allegations in the FIR were required to be seen in
the light of the law laid down by this Court in Kedar Nath Singh vs.
State of Bihar2 and subsequent cases. Viewed thus, the provisions of
Section 124A of the IPC3 would not get attracted at all.
C) As a journalist, the petitioner was entitled to and did nothing
more than critical analysis of the functioning of the Government.
D) The ingredients constituting offences
under Sections 501 and
505 of the IPC3 were also not established.
E) Consequently, the criminal proceedings initiated against the
petitioner being abuse of the process and being violative of the
fundamental rights guaranteed under the Constitution of India, the same
be quashed.
10. In support of the second prayer made in the petition, Mr. Singh
submitted: -
2 (1962) Supp. 2 SCR 769
3 The Indian Penal Code, 1860
VINOD DUA v. UNION OF INDIA & Ors.
[UDAY UMESH LALIT, J.]
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In Jacob Mathew v. State of Punjab and Another4, this Court
issued certain guidelines with regard to prosecution of Medical
Professionals accused of rashness or negligence while discharging their
professional duties; which decision was not only affirmed by the
Constitution Bench of this Court in Lalita Kumari v. Government of
Uttar Pradesh and Others5 but this Court went on to explain that a
preliminary inquiry could validly be insisted upon in certain categories of
cases. The case of journalists as a category be considered on similar
lines, so that the journalists can, without any hindrance or fear of
unwarranted prosecution fulfil their duties. The protection suggested in
the second prayer would afford and ensure protection against such
unwarranted prosecutions.
11. Mr. Tushar Mehta, learned Solicitor General of India appeared
for State of Himachal Pradesh and submitted: -
A) The instant petition under Article 32 of the Constitution of
India, seeking quashing of the FIR may not be entertained and the
petitioner be relegated to remedies available under the Code6.
B) At the present stage, the allegations made in the FIR were
required to be presumed to be true and the matter be allowed to be
investigated into.
C) The attempts on part of the petitioner were to spread
misinformation or incorrect information and cause panic in the perception
of the general public; for example, the statement that some people feared
that
there could be food riots post lockdown was without any basis and
had clear potential of spreading panic. Such action would be covered
and be punishable under Sections 52 and 54 of the DM Act1.
D) Whether such statements were deliberate or unintended and
innocent assertions, would be a matter for investigation and as such no
case was made out for interference at the present stage.
E) The episode in question was uploaded on 30.03.2020 and
migrant workers in many metropolitan cities and towns had started
walking towards their hometowns seriously jeopardising their own
health and safety and that of the society in general.
4 (2005) 6 SCC 1
5 (2014) 2 SCC 1
6 The Code of Criminal Procedure, 1973
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12. In response to the second prayer, it was submitted by the
Solicitor General: -
The direction as prayed for, if granted would result in overstepping
the field and area reserved for the Legislature. Any preliminary inquiry
as suggested by the petitioner, would be clearly opposed to law and not
sanctioned or permitted by law.
13. Mr. S.V. Raju, learned Additional Solicitor General who
appeared for Union of India, submitted: -
A) The matter would additionally come under Section 188 read
with Section 511 of the IPC3 as the statements made by the petitioner
were in the nature of incitement to disobey the orders passed by the
concerned authorities pursuant to lockdown including the order dated
31.03.20207 passed by this Court.
B) The bar under Section 195 of the Code with respect to cases
falling under Section 188 of the IPC3 would be relatable to the stage of
cognizance by Court and not to anterior stages and as such the matter
be allowed to be investigated into.
C) Norms of Journalistic Conduct framed by the Press Council of
India (2010 Edition) obliged the petitioner to check the facts and data
thoroughly from authentic sources and only thereafter he could make
any publication relating to the pandemic in a manner which was bereft
of sensationalization or exaggeration. The conduct of the petitioner was
completely wanting in this respect.
Paragraph 39 of said Norms, on which reliance was placed, reads:-
“39. Reporting on Natural Calamities
(i) Facts and
data relating to spread of epidemics or natural
calamities shall be checked up thoroughly from authentic
sources and then published with due restraint in a manner bereft
of sensationalism, exaggeration, surmises or unverified facts.
 (ii) Natural or manmade hazards become disasters through
acts of commission and omission of the society. Therefore, the
disastrous impact can be minimized by preventive action taken
by all the stakeholders including the media.
7 Writ Petition (C) No.468 of 2020 (Alakh Alok Srivastava v. Union of India)
VINOD DUA v. UNION OF INDIA & Ors.
[UDAY UMESH LALIT, J.]
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(iii) Media should give wide publicity to the do’s and don’ts
and the potential benefits of disaster mitigation so that the
society follows them before, during and after the occurrence
of the disasters. People should be detailed on standard
guidelines. The issues of children and women which are the
most vulnerable groups during and after disaster should be
handled carefully by the media.
(iv) It is necessary to have complete cooperation between the
media and all governmental and non-governmental agencies.
The extent of the coordination and cooperation between them
determines the nature, the degree and the scale of the
preparedness to prevent or meet the disasters.”
14. Mr. Mahesh Jethamalani and Mr. Vinay Navre, learned Senior
Advocates for respondent No.3 reiterated the submissions on behalf of
the State and the Union and submitted that the severity and magnitude
of the pandemic called for strict adherence to the journalistic standards
and observance of restraint; that it was the fake and inaccurate reporting
that triggered the migration of workers; that the petitioner definitely
intended to disrupt the public order and that his intention was apparent
from statements that there could be food shortage resulting in food riots.
In the written submissions filed by respondent No.3, the Order dated
24.03.2020 and Guidelines dated 28.03.2020 were highlighted and relied
upon to submit that by spreading false information
regarding shortage of
food, medical and other essential services, the petitioner had contravened
the Order dated 24.03.2020 and Guidelines dated 28.03.2020 and thereby
committed offences punishable under Sections 188, 153, 124A and 503(b)
of the IPC3.
15. In rejoinder, Mr. Singh repelled the arguments advanced by
the respondents and the essence of his contentions as found in the written
submissions was: -
A) The video of the telecast if watched in its entirety would show
that the intent of the petitioner was to reaffirm the highest standard of
journalism and independence of the media. The petitioner did his duty to
bring forth the dispassionate and critical appraisal of the Government.
His actions were fully covered by Explanations 2 and 3 of Section 124A,
IPC3 and exception to Section 505 IPC3 and were within his Right of
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Free Speech and Expression guaranteed under Article 19 (1)(a) of the
Constitution of India.
B) The complainant along with the State brought down their case
from Section 124-A and Section 505 to Section 188 IPC3 in their attempt
to show that some cognizable offence was committed by the petitioner.
The allegation that the petitioner disobeyed the order dated 31.03.20207
passed by this Court was rather absurd as the telecast was issued prior
to the directions of this Court.
C) The offences under the DM Act1 and Section 188 of the IPC3
were not made out and, in any case, in the absence of a complaint in
terms of Section 60 of the DM Act1 and Section 195 of the Code, the
submissions made by the respondents called for rejection.
D) Further, the order dated 31.03.20207 gave liberty to the media
to have a free discussion about the pandemic; and that there was no
unverified news nor was there any disobedience by the Petitioner. The
information in the telecast was based on the information available in the
public domain.  The interview of former Chief Statistician, Mr. Pronab
Sen reported on 28.3.2020 and the notification dated 19.3.2020 and
24.3.2020 prohibiting export of surgical masks, ventilators and sanitizers
were also placed on record.
In support of the contention that the petitioner had been a journalist
of some standing, following awards / recognitions received by the
petitioner were highlighted in the written submissions: -
“i. Padma Shri for Excellence
in Journalism by the Hon’ble
President of India.
ii. The B.D. Goenka award for excellence in journalism, instituted
by Late Shri Ram Nath Goenka and decided by an eminent jury
comprising Justice Sujata Manohar, Justice Bakhtawar Lentin and
Jurist Nani Palkhiwala.
iii. Haldighati Award for excellence in journalism by the Maharana
Mewar Foundation.
iv. The RedInk Life Time Achievement Award by the Mumbai
Press Club.
v. Conferred with D.Litt. (Honoris Causa) by ITM University,
Gwalior.”
VINOD DUA v. UNION OF INDIA & Ors.
[UDAY UMESH LALIT, J.]
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Finally, in support of the second prayer, the written submissions
stated: -
“There would be similarity between the case of Jacob Mathews
(2005) 6 SCC 1 and the present case as a large number of TV
journalists had been prosecuted in the recent past. More than 56
FIR were registered against TV journalists. Explanations 2 and 3
under Section 124-A IPC would clearly exempt media persons
from the commission of the said offence and also the Exception
under Section 505 IPC would exempt media persons acting in
good faith, from the offence under said Section.”
16. In the written submissions filed on behalf of respondent No.3,
the relevant text of communications dated 24.03.2020 and 28.03.2020
was set out as under: -
“f. On 24.03.2020, the Ministry of Home Affairs issued a public
order proclaiming that in view of the orders that had been issued
under the Disaster Management Act, 2005 (lockdown measures)
which read as under:
“1. In the wake of the orders that have been issued under the
Disaster Management Act, 2005, there are possibilities of
rumour mongering, including those relating to shortage of food
and other essential services and commodities.
2. In this context, it is imperative that all State Governments
and Union Territory Administrations take necessary steps to
suitably publicise through all available means that food, medical
and civil supplies, and other essential services will be maintained
and there are adequate
supplies available in the country.
3. It is also requested that provisions of the Guidelines issued
in this regard, on the measures to be taken for containment of
COVID-19 epidemic in the country, as annexure to MHA Order
No.40-3/2020-D dated 24.03.2020 may be suitably disseminated
amongst the public. All measures may be taken to allay
apprehensions and maintain peace and tranquillity.”
g. On 26.03.2020 the PM had announced Pradhan Mantri Garib
Kalyan Anna Yojna under which 5 Kg of Rice or wheat (according
to regional dietary preferences) per person and 1 kg of dal would
be provided to each family holding a ration card. This successful
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scheme covers 80 crore people and has now been extended till
November 2020. It is recognised inter alia by the WHO as the
largest food security programme in the world.
h. Two days before impugned telecast by the Petitioner, the MHA
issued Consolidated Guidelines on 28.03.2020. As per guidelines:
“2. Offices of the State/Union Territory Governments, their
Autonomous Bodies, Corporations, etc. shall remain closed.
Exceptions:
h. Agencies engaged in procurement of agriculture products,
including MSP operations.
i. ‘Mandis’ operated by the Agriculture Produce Market
Committee or as notified by the State Government.
4. Commercial and private establishments shall be closed down.
Exceptions:
a. Shops, including ration shops (under PDS), dealing with food,
groceries, fruits and vegetables, dairy and milk booths, meat
and fish, animal fodder, fertilizers, seeds and pesticides.
However, district authorities may encourage and facilitate home
delivery to minimize the movement of individuals outside their
homes.
6.  All transport services – air, rail, roadways – will remain
suspended.
Exceptions:
a.
Transportation for essential good only.
…. ….. …..
e. Cross land border movement of essential goods including
petroleum products and LPG, food products, medical supplies.
f. Intra and inter-state movement of harvesting and sowing
related machines like combined harvester and other agriculture/
horticulture implements.”
i. The orders of 24.03.2020 as also the consolidated
guidelines of
28.03.2020 are both orders duly promulgated by public servants
VINOD DUA v. UNION OF INDIA & Ors.
[UDAY UMESH LALIT, J.]
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and disobedience to them by any person renders that person liable
to punishment u/s 188 IPC. In Alakh Alok Srivastava vs. Union
of India, this Hon’ble Court, in its order dated 31.03.2020 (Coram:
Hon’ble Chief Justice and Hon’ble Justice Nageswara Rao) held
as under:
“Disobedience to an order promulgated by a public servant
would result in punishment under Section 188 of the Indian
Penal Code. An advisory which is in the nature of an order
made by the public authority attracts Section 188 of the Indian
Penal Code.”
In spreading manifestly false information and rumour
mongering regarding shortages in the country of food, medical
and other essential services, the Petitioner has contravened
the said orders of 24.03.2020 and 28.03.2020.”
It was further stated:-
“Neither in the petition nor in his written submission has the
petitioner denied that he had knowledge of the advisory of
24.3.2020 and the consolidated guidelines issued by the MHA
on 28.3.2020 nor of the Pradhan Mantri Garib Kalyan Anna
Yojna announced on 26.3.2020.  The petitioner telecast on
30.3.2020, as well as at least three subsequent telecasts from
April to June, 2020 dealt with the prevailing COVID situation
and the Governments’ response to the developing pandemic.
While dealing with so sensitive subject on more than one
occasion, it was incumbent upon the petitioner as a responsible
journalist and by virtue of the Press Council Norms to keep
himself
abreast with Government orders, guidelines pertaining
to the pandemic.  Indeed, his telecast and written submission
indicate that he had express knowledge of some Government
notifications, issued prior to the telecast of 30.3.2020.”
17. At the outset, we must consider whether the instant challenge
raised through a petition under Article 32 of the Constitution and the
prayers made in the petition can be entertained and considered specially
when the investigation into the alleged crime has not yet resulted in a
report under Section 173 of the Code.
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18. It is the contention of the respondents that the petitioner be
relegated to the remedies under the Code rather than entertain the instant
petition under Article 32 of the Constitution.  Since the first prayer in the
petition seeks quashing of the FIR, reliance is placed on the decision of
this Court in Arnab Ranjan Goswami vs. Union of India and Others8
in which the relief was granted against multiple FIRs arising from the
same television show and pending at places other than Mumbai but this
Court refused to exercise jurisdiction under Article 32 of the Constitution
for the purpose of quashing the basic FIR registered at Mumbai.  The
relevant discussion in that behalf was: -
“39. A litany of our decisions — to refer to them individually would
be a parade of the familiar — has firmly established that any
reasonable restriction on fundamental rights must comport with
the proportionality standard, of which one component is that the
measure adopted must be the least restrictive measure to
effectively achieve the legitimate State aim. Subjecting an individual
to numerous proceedings arising in different jurisdictions on the
basis of the same cause of action cannot be accepted as the least
restrictive and effective method of achieving the legitimate State
aim in prosecuting crime. The manner in which the petitioner has
been subjected to numerous FIRs in several States, besides the
Union Territories of Jammu and Kashmir on the basis of identical
allegations
arising out of the same television show would leave no
manner of doubt that the intervention of this Court is necessary to
protect the rights of the petitioner as a citizen and as a journalist
to fair treatment (guaranteed by Article 14) and the liberty to
conduct an independent portrayal of views. In such a situation to
require the petitioner to approach the respective High Courts
having jurisdiction for quashing would result into a multiplicity of
proceedings and unnecessary harassment to the petitioner, who is
a journalist.
40. The issue concerning the registration of numerous FIRs and
complaints covering different States is however, as we will explain,
distinct from the investigation which arises from FIR No. 164 of
2020 at N.M. Joshi Marg Police Station in Mumbai. The petitioner,
in the exercise of his right under Article 19(1)(a), is not immune
from an investigation into the FIR which has been transferred
8 (2020) 14 SCC 12
VINOD DUA v. UNION OF INDIA & Ors.
[UDAY UMESH LALIT, J.]
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from Police Station Sadar, District Nagpur City to N.M. Joshi
Marg Police Station in Mumbai. This balance has to be drawn
between the exercise of a fundamental right under Article 19(1)(a)
and the investigation for an offence under the CrPC. All other
FIRs in respect of the same incident constitute a clear abuse of
process and must be quashed.
…..
    …..
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57. We hold that it would be inappropriate for the Court to exercise
its jurisdiction under Article 32 of the Constitution for the purpose
of quashing FIR No. 164 of 2020 under investigation at N.M.
Joshi Marg Police Station in Mumbai. In adopting this view, we
are guided by the fact that the checks and balances to ensure the
protection of the petitioner’s liberty are governed by the CrPC.
Despite the liberty being granted to the petitioner on 24-4-20209,
it is an admitted position that the petitioner did not pursue available
remedies in the law, but sought instead to invoke the jurisdiction
of this Court. Whether the allegations contained in the FIR do or
do not make out any offence as alleged will not be decided in
pursuance of the jurisdiction of this Court under Article 32, to
quash the FIR. The petitioner must be relegated to the pursuit of
the remedies available under the CrPC, which we hereby do. The
petitioner has an equally efficacious remedy available before the
High Court. We should not be construed as holding that a petition
under Article 32 is not
maintainable. But when the High Court
has the power under Section 482, there is no reason to by-pass
the procedure under the CrPC, we see no exceptional grounds or
reasons to entertain this petition under Article 32. There is a clear
distinction between the maintainability of a petition and whether it
should be entertained. In a situation like this, and for the reasons
stated hereinabove, this Court would not like to entertain the petition
under Article 32 for the relief of quashing the FIR being investigated
at N.M. Joshi Police Station in Mumbai which can be considered
by the High Court. Therefore, we are of the opinion that the
petitioner must be relegated to avail of the remedies which are
available under the CrPC before the competent court including
the High Court.”
(Emphasis supplied)
9 Arnab Ranjan Goswami v. Union of India, (2020) 14 SCC 51
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The further contention is that there are no exceptional grounds or
reasons for entertaining the petition under Article 32 of the Constitution
nor is there any reason to bypass the procedure under the Code.
19. Reliance is also placed on the decision of this Court in Amish
Devgan vs. Union of India and Others10  which in turn referred to the
decisions of this Court in State of H.P. vs. Pirthi Chand and Another11
and State of UP vs. OP Sharma12 as well as the decision in Arnab
Ranjan Goswami8. In Amish Devgan10, this Court did not refuse to
entertain the petition at the threshold but proceeded to consider the issues
on merits and finally declined the prayer made by the petitioner for
quashing of the FIRs. The following observations are noteworthy: -
“118. We respectfully agree with the aforesaid ratio. Ordinarily
we would have relegated the petitioner and asked him to approach
the concerned High Court for appropriate relief, albeit in the present
case detailed arguments have been addressed by both sides on
maintainability and merits of the FIRs in question and, therefore,
been dealt with by us and rejected at this stage. We do not, in
view of this peculiar circumstance, deem it appropriate to permit
the petitioner to open another round of litigation; therefore, we
have proceeded to answer the issues under consideration.”
(Emphasis supplied)
At the same time, there is a line of cases in which even while
exercising jurisdiction under Article 32 of the
Constitution of India, this
Court was pleased to quash the concerned FIRs; some such cases
being: -
(i) Vijay Shekhar and Another vs. Union of India and Others13
(ii) Rini Johar and Another vs. State of Madhya Pradesh and
Others14
(iii) Monica Kumar and Another vs. State of Uttar Pradesh
and Others15
10 (2021) 1 SCC 1
11 (1996) 2 SCC 37
12 (1996) 7 SCC 705
13 (2004) 4 SCC 666
14 (2016) 11 SCC 703
15 (2017) 16 SCC 169
VINOD DUA v. UNION OF INDIA & Ors.
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(iv) Priya Prakash Varrier and Others vs. State of Telangana
and Another16
(v) Laxmibai Chandaragi B. and Another vs. State of
Karnataka and Others17
20. In Priya Prakash Varrier16, the nature of relief claimed was
set out in paragraph 1 of the decision whereafter this Court relied upon
the dictum of the Constitution Bench in Ramji Lal Modi vs. State of
U.P.18 that for an offence to come within the parameters of Section
295-A of the IPC3, the crime ought to have been committed with
deliberate and malicious intention of outraging the religious feelings of a
class.  Finding such element to be completely absent, the relief prayed
for was granted by this Court. The relevant observations of this Court
were:-
“1. In the instant writ petition preferred under Article 32 of the
Constitution of India, the petitioners, namely, the actor, producer
and director of the movie, have prayed for quashing of FIR No.
34 of 2018, dated 14-2-2018, registered at Falaknama Police
Station, Hyderabad, Telangana. That apart, a prayer has also been
made that no FIR should be entertained or no complaint under
Section 200 of the Code of Criminal Procedure, 1973 should be
dealt with because of the picturisation of the song “Manikya
Malaraya Poovi” by Petitioner 1 in the film, namely, “Oru Adaar
Love”.
7.    It is worthy to note here that the constitutional validity of the
said provision was assailed before this Court and a Constitution
Bench in
Ramji Lal Modi v. State of U.P.17, spoke thus: (AIR
pp. 622-23, paras 8-9)
“8. It is pointed out that Section 295-A has been included in
Chapter XV, Penal Code which deals with offence relating to
religion and not in Chapter VIII which deals with offences
against the public tranquillity and from this circumstance it is
faintly sought to be urged, therefore, that offences relating to
religion have no bearing on the maintenance of public order or
tranquillity and consequently a law creating an offence relating
16 (2019) 12 SCC 432
17 (2021) 3 SCC 360
18 AIR (1957) SC 620
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to religion and imposing restrictions on the right to freedom of
speech and expression cannot claim the protection of clause
(2) of Article 19. A reference to Articles 25 and 26 of the
Constitution, which guarantee the right to freedom of religion,
will show that the argument is utterly untenable. The right to
freedom of religion assured by those articles is expressly made
subject to public order, morality and health. Therefore, it cannot
be predicated that freedom of religion can have no bearing
whatever on the maintenance of public order or that a law
creating an offence relating to religion cannot under any
circumstances be said to have been enacted in the interests of
public order. Those two articles in terms contemplate that
restrictions may be imposed on the rights guaranteed by them
in the interests of public order.
9. The learned counsel then shifted his ground and formulated
his objection in a slightly different way. Insults to the religion
or the religious beliefs of a class of citizens of India, may, says
the learned counsel, lead to public disorders in some cases, but
in many cases they may not do so and, therefore, a law which
imposes restrictions on the citizens’ freedom of speech and
expression by simply making insult to religion an offence will
cover both varieties of insults i.e. those which may lead to
public disorders as well as those which may not. The law insofar
as it covers the first variety may be said to have been enacted
in the
interests of public order within the meaning of clause (2)
of Article 19, but insofar as it covers the remaining variety will
not fall within that clause. The argument then concludes that
so long as the possibility of the law being applied for purposes
not sanctioned by the Constitution cannot be ruled out, the entire
law should be held to be unconstitutional and void. We are
unable, in view of the language used in the impugned section,
to accede to this argument. In the first place clause (2) of
Article 19 protects a law imposing reasonable restrictions on
the exercise of the right to freedom of speech and expression
“in the interests of public order”, which is much wider than
“for maintenance of” public order. If, therefore, certain activities
have a tendency to cause public disorder, a law penalising such
activities as an offence cannot but be held to be a law imposing
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reasonable restriction “in the interests of public order” although
in some cases those activities may not actually lead to a breach
of public order. In the next place Section 295-A 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. 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. 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 calculated tendency of this
aggravated form of insult is clearly to disrupt the public order
and the section, which penalises such activities, is well within
the protection of clause (2) of Article 19 as being a law imposing
reasonable restrictions on the exercise of the right to freedom
of speech and expression guaranteed by Article 19(1)(a).
Having regard to the ingredients of the offence created by the
impugned section, there cannot, in our opinion, be any possibility
of this law being
applied for purposes not sanctioned by the
Constitution. In other words, the language employed in the
section is not wide enough to cover restrictions both within
and without the limits of constitutionally permissible legislative
action affecting the fundamental right guaranteed by Article
19(1)(a) and consequently the question of severability does
not arise and the decisions relied upon by learned counsel for
the petitioner have no application to this case.”
12.  In Mahendra Singh Dhoni v. Yerraguntla Shyamsundar19,
the justification for the registration of an FIR under Section 295-
A had come up for consideration before this Court. Appreciating
the act done by the petitioner therein, the Court quashed the FIR
for an offence under Section 295-A IPC.
13. If the ratio of the Constitution Bench is appropriately
appreciated, the said provision was saved with certain riders,
19 (2017) 7 SCC 760
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inasmuch as the larger Bench had observed that the language
employed in the section is not wide enough to cover restrictions,
both within and without the limits of constitutionally permissible
legislative action affecting the fundamental right guaranteed by
Article 19(1)(a) of the Constitution. The emphasis was laid on
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.
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15. In view of the aforesaid, we allow the writ petition and quash
FIR No. 34 of 2018. We also direct that no FIR under Section 154
or any complaint under Section 200 of the Code of Criminal
Procedure should be entertained against the petitioners because
of the picturisation of the song. However, there shall be no order
as to costs.”
Notably, this decision rendered by a three Judge Bench of this
Court was in the context of right claimed under Article 19(1)(a) of the
Constitution, where the offence alleged was one under Section 295-A of
the IPC3.  Apart from quashing the FIR, this Court also directed that no
FIR or complaint should be entertained against the petitioners because
of the picturisation of the concerned song.
21. In the celebrated case of Romesh Thappar v. The State of
Madras20, a Constitution Bench of this Court dealt with the preliminary
objection that instead of entertaining a petition under Article 32 of the
Constitution, the petitioner be asked to
approach the High Court under
Article 226 of the Constitution, in following words:-
“ The Advocate-General of Madras appearing on behalf of the
respondents raised a preliminary objection, not indeed to the
jurisdiction of this Court to entertain the application under article 32,
but to the petitioner resorting to this Court directly for such relief
in the first instance. He contended that, as a matter of orderly
procedure, the petitioner should first resort to the High Court at
Madras which under article 226 of the Constitution has concurrent
jurisdiction to deal with the matter. He cited criminal revision
petitions under section 435 of the Criminal Procedure Code,
20 1950 SCR 594
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applications for bail and applications for transfer under
section 24 of the civil Procedure Code as instances where,
concurrent jurisdiction having been given in certain matters to the
High Court and the Court of a lower grade, a rule of practice has
been established that a party should proceed first to the latter
Court for relief before resorting to the High Court. He referred to
Emperor v. Bisheswar Prasad Sinha21, where such a rule of
practice was enforced in a criminal revision case, and called our
attention also to certain American decisions Urquhart v.
Brown22 and Hooney v. Kolohan23, as showing that the Supreme
Court of the United States ordinarily required that whatever judicial
remedies remained open to the applicant in Federal and State
Courts should be exhausted before the remedy in the Supreme
Court - be it habeas corpus or certiorari - would be allowed. We
are of opinion that neither the instances mentioned by the learned
Advocate-General nor the American decisions referred to by him
are really analogous to the remedy afforded by article 32 of the
Indian Constitution. That article does not merely confer power on
this Court, as article 226 does on the High Court, to issue certain
writs for the enforcement of the rights conferred by Part III or
for any other purpose, as part of its general jurisdiction. In that
case it would have been more appropriately placed among
articles 131 to 139 which define that
jurisdiction.
Article 32 provides a “guaranteed” remedy for the enforcement
of those rights, and this remedial right is itself made a fundamental
right by being included in Part III. This Court is thus constituted
the protector and guarantor of fundamental rights, and it cannot,
consistently with the responsibility so laid upon it, refuse to entertain
applications seeking protection against infringements of such rights.
No similar provision is to be found in the Constitution of the United
States and we do not consider that the American decisions are in
point.”
22. The aforestated dictum was followed by another Constitution
Bench of this Court in Daryao and others v. The State of U.P. and
others24 as under:
21 I.L.R. 56 All. 158
22 205 U.S. 179
23 294 U.S. 10
24 (1962) 1 SCR 574
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“ There can be no doubt that the fundamental right guaranteed by
Art. 32(1) is a very important safeguard for the protection of the
fundamental rights of the citizens, and as a result of the said
guarantee this Court has been entrusted with the solemn task of
upholding the fundamental rights of the citizens of this country.
The fundamental rights are intended not only to protect individual’s
rights but they are based on high public policy. Liberty of the
individual and the protection of his fundamental rights are the very
essence of the democratic way of life adopted by the constitution,
and it is the privilege and the duty of this Court to uphold those
rights. This Court would naturally refuse to circumscribe them or
to curtail them except as provided by the Constitution itself. It is
because of this aspect of the matter that in Romesh Thappar v.
The State of Madras20, in the very first year after the Constitution
came into force, this Court rejected a preliminary objection raised
against the competence of a petition filed under Art. 32 on the
ground that as a matter of orderly procedure the petitioner should
first have resorted to the High Court under Art. 226, and observed
that “this Court in thus constituted the protector and guarantor of
the fundamental rights, and it cannot, consistently with the
responsibility so laid upon it, refuse to entertain applications seeking
protection against infringements of such rights”.”
23. In Jagisha Arora vs. State
of Uttar Pradesh and Another25,
this Court entertained a petition under Article 32 of the Constitution against
an order of remand passed by the jurisdictional magistrate despite the
objection that the order must be challenged in accordance with the
provisions of the Code. The discussion was:-
“2. The fundamental rights guaranteed under the Constitution of
India and in particular Articles 19 and 21 of the Constitution of
India are non-negotiable.
3. The learned Additional Solicitor General appearing on behalf
of the State has opposed this allegation on various technical grounds
including the ground that there is an order of remand passed by
the jurisdictional Magistrate. It is also contended that the High
Court should have first been approached.
25 (2019) 6 SCC 619
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4. Citing the judgment of this Court in State of
Maharashtra v. Tasneem Rizwan Siddiquee26, the learned
Additional Solicitor General argued that the question of whether a
writ of habeas corpus could be maintained in respect of a person
who was in police custody pursuant to a remand order passed by
the jurisdictional Magistrate in connection with the offence under
investigation, had already been settled by this Court. This
application, is, therefore not maintainable. It was argued that the
order of remand ought to be challenged in accordance with the
provisions of the Criminal Procedure Code. It was also argued
that this Court does not ordinarily entertain writ petitions unless
the High Court has first been approached.
5. As a matter of self-imposed discipline and considering the
pressure of mounting cases on this Court, it has become the practice
of this Court to ordinarily direct that the High Court first be
approached even in cases of violation of fundamental rights.
However, Article 32 which is itself a fundamental right cannot be
rendered nugatory in a glaring case of deprivation of liberty as in
the instant case, where the jurisdictional Magistrate has passed
an order of remand till 22-6-2019 which means that the petitioner’s
husband Prashant Kanojia would be in custody for about 13/14
days for putting up posts/tweets on the social media.
6. We are not inclined to sit back on technical grounds. In exercise
of
power under Article 142 of the Constitution of India this Court
can mould the reliefs to do complete justice.
7. We direct that the petitioner’s husband be immediately released
on bail on conditions to the satisfaction of the jurisdictional Chief
Judicial Magistrate. It is made clear that this order is not to be
construed as an approval of the posts/tweets in the social media.
This order is passed in view of the excessiveness of the action
taken.”
24. Thus, the practice of directing that the High Court be
approached first even in cases of violation of fundamental rights, is more
of a self-imposed discipline by this Court; but in glaring cases of
deprivation of liberty, this Court has entertained petitions under Article
32 of the Constitution. We may, at this stage, also notice the following
26 (2018) 9 SCC 745 : (2019) 1 SCC (Cri) 386
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observations made in Union of India vs. Paul Manickam and
Another27:-
“22.  Another aspect which has been highlighted is that many
unscrupulous petitioners are approaching this Court under Article
32 of the Constitution challenging the order of detention directly
without first approaching the High Courts concerned. It is
appropriate that the High Court concerned under whose jurisdiction
the order of detention has been passed by the State Government
or Union Territory should be approached first. In order to invoke
the jurisdiction under Article 32 of the Constitution to approach
this Court directly, it has to be shown by the petitioner as to why
the High Court has not been approached, could not be approached
or it is futile to approach the High Court. Unless satisfactory
reasons are indicated in this regard, filing of petition in such matters
directly under Article 32 of the Constitution is to be discouraged.”
25. We have therefore considered the instant case in the light of
the principles emanating from all the aforementioned decisions.
Apart from the fact that the right claimed by the petitioner is one
under Article 19 (1) (a) of the Constitution which was in the forefront in
Romesh Thappar20, Priya Prakash Varrier16, Jagisha Arora25 and
Amish Devgan10 in our view, the second prayer made by the petitioner
can effectively be considered only in a writ petition. Going by the nature
of the second prayer, relegating the petitioner to file a petition under
Article 226 of the Constitution, may not be appropriate.  Rather, the
issue must ideally be settled by this Court. Consequently, we do not
accept the preliminary objection raised by the respondents and we
proceed to deal with the merits and consider the matter with respect to
both the prayers.
26. After stating that in his Talk Show uploaded on 30.03.2020,
the petitioner had asserted that the Prime Minister used deaths and terror
attacks to garner votes and that the Prime Minister garnered votes
through acts of terrorism, the F.I.R. stated, “This directly amounts to
inciting violence amongst the citizens and will definitely disturb public
tranquillity.  This is an act of instigating violence against the Government
and the Prime Minister.” It was also stated, “the petitioner creates panic
amongst the public and disturbs public peace by trying to spread false
27 (2003) 8 SCC 342
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information, such as… the Government does not have enough testing
facilities which is absolutely false.”
According to the F.I.R. “…by making such false statements,
Mr.Vinod Dua spread fear amongst the people.  This video will only
create a situation of unrest amongst the public which will result in panic
and people not obeying the lockdown to come out and hoard essentials
which is absolutely unnecessary.…. The rumours were spread with intent
to cause, or which is likely to cause, fear or alarm to the public or to any
section of the public, whereby any person may be induced to commit an
offence against the State or against the public tranquillity.”
27. On facts, it has been established that the statements attributed
to the petitioner that the Prime Minister had used deaths and terror
attacks to garner votes or that the Prime Minister had garnered votes
through acts of terrorism, were not made in the Talk Show. The true
translation of the original episode in Hindi, has been placed on record.
No such assertions find place in the true translation nor were any
objections raised that the translated version was in any way incorrect.
The petitioner did say that the air strikes by India on Balakot and attacks
on Pathankot and Pulwama were used as political events to garner votes
but no allegations were made against the Prime Minister as was stated
in the F.I.R.
It is true that some of the portions of the Talk Show do assert
that
there were not enough testing facilities; that there was no information as
to the quantum of PPE kits/ suits, N95 masks, and masks of three ply
that were available in the country; that the respiratory devices and
sanitizers were being exported till 24th March (2020) instead of keeping
them for use in the country; that the supply claims got disrupted due to
blockage of roads; and that the migrant workers was a huge issue. It
was also asserted that with supply claims being closed, some people had
feared food riots, which had not happened in the country.  These
statements were subject matter of considerable debate by the learned
Counsel and the principal question is whether these statements were
merely in the nature of critical appraisal of the performance of the
Government or were designed to create unrest amongst the public.
28. The scope of section 124(A) of the IPC3 was considered by a
Constitution Bench of this Court in Kedar Nath Singh v. State of Bihar2.
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28.1 The conviction of Kedar Nath Singh under Sections 124A
and 505(b) of the IPC3 was affirmed by the High Court; and the view
taken by the High Court was paraphrased as under:
“In the course of his judgment, the learned Judge observed that
the subject-matter of the charge against the appellant was nothing
but a vilification of the Government; that it was full of incitements
to revolution and that the speech taken as a whole was certainly
seditious. It is not a speech criticising any particular policy of the
Government or criticising any of its measures. He held that the
offences both under Sections 124-A and 505(b) of the Indian Penal
Code had been made out.”
28.2 This Court dealt with the decisions in Bangobashi case
(Queen Empress v. Jogendra Chunder Bose28) and Queen-Empress
v. Balgangaddhar Tilak29, as under:
“The first case in India that arose under the section is what is
known as the Bangobasi case (Queen-Empress v. Jogendra
Chunder Bose28 which was tried by a jury before Sir Comer
Petheram, C.J. While charging the jury, the learned Chief Justice
explained the law to the jury in these terms:
“Disaffection means a feeling contrary to affection, in other
words, dislike or hatred. Disapprobation means simply
disapproval. It is quite possible to disapprove of a man’s
sentiments or action and yet to like him. The meaning of the
two words is so distinct that I feel it hardly necessary to tell
you that the contention of Mr Jackson cannot be sustained.
If
a person uses either spoken or written words calculated to
create in the minds of the persons to whom they are addressed
a disposition not to obey the lawful authority of the Government,
or to subvert or resist that authority, if and when occasion should
arise, and if he does so with the intention of creating such a
disposition in his hearers or readers, he will be guilty of the
offence of attempting to excite disaffection within the meaning
of the section, though no disturbance is brought about by his
words or any feeling of disaffection, in fact, produced by them.
It is sufficient for the purposes of the section that the words
28 (1892) I.L.R. 19 Cal. 35
29 (1898) I.L.R. 22 Bom. 112.
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used are calculated to excite feelings of ill-will against the
Government and to hold it up to the hatred and contempt of the
people, and that they were used with the intention to create
such feeling.”
The next case is the celebrated case of Queen-
Empress v. Balgangadhar Tilak29 which came before the
Bombay High Court. The case was tried by a jury before Strachey,
J. The learned Judge, in the course of his charge to the jury,
explained the law to them in these terms:
“The offence as defined by the first clause is exciting or
attempting to excite feelings of disaffection to the Government.
What are ‘feelings of disaffection’? I agree with Sir Comer
Petheram in the Bangobasi case that disaffection means simply
the absence of affection. It means hatred, enmity, dislike,
hostility, contempt and every form of ill-will to the Government.
‘Disloyalty’ is perhaps the best general term, comprehending
every possible form of bad feeling to the Government. That is
what the law means by the disaffection which a man must not
excite or attempt to excite; he must not make or try to make
others feel enmity of any kind towards the Government. You
will observe that the amount or intensity of the disaffection is
absolutely immaterial except perhaps in dealing with the
question of punishment: if a man excites or attempts to excite
feelings of disaffection, great or small, he is guilty under the
section. In the next place, it is
absolutely immaterial whether
any feelings of disaffection have been excited or not by the
publication in question. It is true that there is before you a
charge against each prisoner that he has actually excited
feelings of disaffection to the Government. If you are satisfied
that he has done so, you will, of course, find him guilty. But if
you should hold that that charge is not made out, and that no
one is proved to have been excited to entertain feelings of
disaffection to the Government by reading these articles, still
that alone would not justify you in acquitting the prisoners. For
each of them is charged not only with exciting feelings of
disaffection, but also with attempting to excite such feelings.
You will observe that the section places on absolutely the same
footing the successful exciting of feelings of disaffection and
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the unsuccessful attempt to excite them, so that, if you find
that either of the prisoners has tried to excite such feelings in
others, you must convict him even if there is nothing to show
that he succeeded. Again, it is important that you should fully
realise another point. The offence consists in exciting or
attempting to excite in others certain bad feelings towards the
Government. It is not the exciting or attempting to excite mutiny
or rebellion, or any sort of actual disturbance, great or small.
Whether any disturbance or outbreak was caused by these
articles, is absolutely immaterial. If the accused intended by
the articles to excite rebellion or disturbance, his act would
doubtless fall within Section 124-A, and would probably fall
within other sections of the Penal Code. But even if he neither
excited nor intended to excite any rebellion or outbreak or
forcible resistance to the authority of the Government, still if
he tried to excite feelings of enmity to the Government, that is
sufficient to make him guilty under the section. I am aware
that some distinguished persons have thought that there can
be no offence against the section unless the accused either
counsels or suggests rebellion or forcible resistance to the
Government. In my opinion, that view is absolutely opposed to
the express words of the section itself, which as plainly as
possible makes the exciting or attempting to excite certain
feelings, and not the inducing or attempting to
induce to any
course of action such as rebellion or forcible resistance, the
test of guilt. I can only account for such a view by attributing it
to a complete misreading of the explanation attached to the
section, and to a misapplication of the explanation beyond its
true scope.”
28.3 This Court then considered the further proceedings taken up
after Balgangadhar Tilak was found guilty: -
“……The Jury, by a majority of six to three, found Shri
Balgangadhar Tilak guilty. Subsequently, he, on conviction, applied
under clause 41 of the Letters Patent for leave to appeal to the
Privy Council. The application was heard by a Full Bench consisting
of Farran, C.J., Candy and Strachey, JJ. It was contended before
the High Court at the leave stage, inter alia, that the sanction
given by the Government was not sufficient in law in that it had
VINOD DUA v. UNION OF INDIA & Ors.
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not set out the particulars of the offending articles, and, secondly,
that the Judge misdirected the jury as to the meaning of the word
“disaffection” insofar as he said that it might be equivalent to
“absence of affection”. With regard to the second point, which is
the only relevant point before us, the Full Bench expressed itself
to the following effect:
“The other ground upon which Mr Russell has asked us to
certify that this is a fit case to be sent to Her Majesty in
Council, is that there has been a misdirection, and he based his
argument on one major and two minor grounds. The major
ground was that the section cannot be said to have been
contravened unless there is a direct incitement to stir up disorder
or rebellion. That appears to us to be going much beyond the
words of the section, and we need not say more upon that
ground. The first of the minor points is that Mr Justice Strachey
in summing up the case to the jury stated that disaffection
meant the ‘absence of affection’. But although if that phrase
had stood alone it might have misled the jury, yet taken in
connection with the context we think it is impossible that the
jury could have been misled by it. That expression was used in
connection with the law as laid down by Sir Comer Petheram
in Calcutta in the Bangaboshi case. There the Chief Justice
instead of using the words absence of affection used the words
‘contrary to affection’. If the words
‘contrary to affection’
had been used instead of ‘absence of affection’ in this case
there can be no doubt that the summing up would have been
absolutely correct in this particular. But taken in connection
with the context it is clear that by the words ‘absence of
affection’ the learned Judge did not mean the negation of
affection, but some active sentiment on the other side. Therefore
on that point we consider that we cannot certify that this is a
fit case for appeal.
In this connection it must be remembered that it is not alleged
that there has been a miscarriage of justice.”
After making those observations, the Full Bench refused the
application for leave. The case was then taken to Her Majesty in
Council, by way of application for special leave to appeal to the
Judicial Committee. Before Their Lordships of the Privy Council,
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Asquith, Q.C., assisted by counsel of great experience and
eminence like Mayne, W.C. Bannerjee and others, contended that
there was a misdirection as to the meaning of Section 124-A of
the Penal Code in that the offence had been defined in terms too
wide to the effect that “disaffection” meant simply “absence of
affection”, and that it comprehended every possible form of bad
feeling to the Government. In this connection reference was made
to the observations of Petheram, C.J. in Queen-
Empress v. Jogendra Chander Bose28.  It was also contended
that the appellant’s comments had not exceeded what in England
would be considered within the functions of a public journalist,
and that the misdirection complained of was of the greatest
importance not merely to the affected person but to the whole of
the Indian press and also to all Her Majesty’s subjects; and that it
injuriously affected the liberty of the press and the right to free
speech in public meetings. But in spite of the strong appeal made
on behalf of the petitioner for special leave, the Lord Chancellor,
delivering the opinion of the Judicial Committee, while dismissing
the application, observed that taking a view of the whole of the
summing up they did not see any reason to dissent from it, and
that keeping in view the Rules which Their Lordships observed in
the matter of granting leave to appeal in criminal cases, they did
not think that the case raised questions which deserve further
consideration
by the Privy Council, (vide Gangadhar
Tilak v. Queen-Empress.30"
28.4 Thereafter, the decision of the Federal Court in Niharendu
Dutt Majumdar v. The King Emperor31 was dealt with and it was
noticed that the statement of law made by the Federal Court was not
accepted by the Privy Council. The discussion was: -
“While dealing with a case arising under Rule 34(6)(e) of the
Defence of India Rules under the Defence of India Act (35 of
1939), Sir Maurice Gwyer, C.J., speaking for the Federal Court,
made the following observations in the case of Niharendu Dutt
Majumdar v. King-Emperor31  and has pointed out that the
language of Section 124-A of the Indian Penal Code, which was
in pari materia with that of the Rule in question, had been adopted
30 (1897) L.R. 25 I.A. 1.
31 (1942) F.C.R. 38
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from the English Law, and referred with approval to the
observations of Fitzerald, J., in the case quoted above; and made
the following observations which are quite apposite;
“… generally speaking, we think that the passage accurately
states the law as it is to be gathered from an examination of a
great number of judicial pronouncements.
The first and most fundamental duty of every Government
is the preservation of order, since order is the condition
precedent to all civilisation and the advance of human happiness.
This duty has no doubt been sometimes performed in such a
way as to make the remedy worse than the disease; but it
does not cease to be a matter of obligation because some on
whom the duty rests have performed it ill. It is to this aspect of
the functions of Government that in our opinion the offence of
sedition stands related. It is the answer of the State to those
who, for the purpose of attacking or subverting it, seek (to
borrow from the passage cited above) to disturb its tranquillity,
to create public disturbance and to promote disorder, or who
incite others to do so. Words, deeds or writings constitute
sedition, if they have this intention or this tendency; and it is
easy to see why they may also constitute sedition, if they seek,
as the phrase is, to bring Government into contempt. This is
not made an offence in order to minister to the wounded vanity
of Government, but because where Government
and the law
cease to be obeyed because no respect is felt any longer for
them, only anarchy can follow. Public disorder, or the
reasonable anticipation or likelihood of public disorder, is thus
the gist of the offence. The acts or words complained of must
either incite to disorder or must be such as to satisfy reasonable
men that that is their intention or tendency.”
This statement of the law was not approved by Their Lordships
of the Judicial Committee of the Privy Council in the case of King-
Emperor v. Sadashiv Narayan Bhalerao32. The Privy Council,
after quoting the observations of the learned Chief Justice
in Niharendu case31 while disapproving of the decision of the
Federal Court, observed that there was no statutory definition of
32 74 IA 89
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“sedition” in England, and the meaning and content of the crime
had to be gathered from many decisions.”
(Emphasis supplied)
28.5 The conflict in the decision of the Federal Court and that of
the Privy Council was thereafter noticed by this Court as follows:
“Thus, there is a direct conflict between the decision of the Federal
Court in Niharendu case31 and of the Privy Council in a number
of cases from India and the Gold Coast, referred to above. It is
also clear that either view can be taken and can be supported on
good reasons. The Federal Court decision takes into consideration,
as indicated above, the pre-existing Common Law of England in
respect of sedition. It does not appear from the report of the Federal
Court decision that the rulings aforesaid of the Privy Council had
been brought to the notice of Their Lordships of the Federal Court.”
28.6 The scope of section 124A of the IPC3 was considered
thus: -
“The section was amended by the Indian Penal Code Amendment
Act (IV of 1898).  As a result of the amendment, the single
explanation to the section was replaced by three separate
explanations as they stand now.  The section, as it now stands in
its present form, is the result of the several A.O.s of 1937, 1948
and 1950, as a result of the constitutional changes, by the
Government of India Act, 1935, by the Independent Act of 1947
and by the Indian Constitution of 1950.  Section 124A, as it has
emerged after successive amendments by way of
adaptations as
aforesaid, reads as follows:
“Whoever by words, either spoken or written, or by signs
or by visible representation, or otherwise, brings or attempts to
bring into hatred or contempt, or excites or attempts to excite
disaffection towards the Government established by law in
India shall be punished with transportation for life or any shorter
term to which fine may be added or with imprisonment which
may extend to three years, to which fine may be added, or
with fine.
Explanation   1. The expression “disaffection” includes
disloyalty and all feelings of enmity.
VINOD DUA v. UNION OF INDIA & Ors.
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Explanation 2. Comments expressing disapprobation of the
measures of the Government with a view to obtain their
alteration by lawful means, without exciting or attempting to
excite hatred, contempt or disaffection do not constitute an
offence under this section.
Explanation 3, Comments expressing disapprobation of the
administrative or other action of the Government without
exciting or attempting to excite hatred, contempt or disaffection,
do not constitute an offence under this section.”
This offence, which is generally known as the offence of Sedition,
occurs in Chapter VI of the Indian Penal Code, headed ‘Of
offences against the State’.  This species of offence against the
State was not an invention of the British Government in India, but
has been known in England for centuries.  Every State, whatever
its form of Government, has to be armed with the power to punish
those who, by their conduct, jeopardise the safety and stability of
the State, or disseminate such feeling of disloyalty as have the
tendency to lead to the disruption of the State or to public disorder.
In England, the crime has thus been described by Stephen in his
Commentaries on the Laws of England, 21st Edition, volume IV,
at pages 141-142, in these words:
“Section IX. Sedition and Inciting to Disaffection – We
are now concerned with conduct which, on the one hand, fall
short of treason, and on the other does not involve the use of
force or
violence.  The law has here to reconcile the right of
private criticism with the necessity of securing the safety and
stability of the State.  Sedition may be defined as conduct which
has, either as its object or as its natural consequence, the
unlawful display of dissatisfaction with the Government or with
the existing order of society.
The seditious conduct may be by words, by deed, or by
writing.  Five specific heads of sedition may be enumerated
according to the object of the accused.  This may be either.
1. to excite disaffection against the King, Government, or
Constitution, or against Parliament or the administration of
justice;
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2. to promote by unlawful means, any alteration in Church or
State;
3. to incite a disturbance of the peace ;
4. to raise discontent among the King’s subjects ;
5. to excite class hatred.
It must be observed that criticism on political matters is not of
itself sedition.  The test is the manner in which it is made.
Candid and honest discussion is permitted.  The law only
interferes when the discussion passes the bounds of fair
criticism. More especially will this be the case when the natural
consequence of the prisoner’s conduct is to promote public
disorder.”
This statement of the law is derived mainly from the address to
the Jury by Fitzerald, J., in the case of Reg v. Alexander Martin
Sullivan33. In the course of his address to the Jury, the learned
Judge observed as follows:
“Sedition is a crime against society, nearly allied to that of
treason and it frequently precedes treason by a short interval.
Sedition in itself is a comprehensive term, and it embraces all
those practices, whether by word, deed or writing, which are
calculated to disturb the tranquillity of the State, and lead
ignorant persons to endeavour to subvert the Government and
the laws of the empire. The objects of sedition generally are to
induce discontent and insurrection, and stir up opposition to the
Government, and bring the administration of justice into
contempt; and the very tendency of sedition is to incite the
people to insurrection and rebellion. Sedition has been described
as disloyalty in action, and the law considers as sedition all
those practices which have for their object to excite discontent
or dissatisfaction, to create public disturbance, or to lead to
civil war; to bring into hatred or contempt the Sovereign or the
Government, the laws or constitution of the realm, and generally
all endeavours to promote public disorder.”
That the law has not changed during the course of the centuries
is also apparent from the following statement of the law by
33 (1867-71) 11 Cox’s Criminal Law Cases, 44 at p. 45
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Coleridge, J., in the course of his summing up to the Jury in the
case of Rex v. Aldred34:
“Nothing is clearer than the law on this head — namely, that
whoever by language, either written or spoken, incites or
encourages others to use physical force or violence in some
public matter connected with the State, is guilty of publishing a
seditious libel. The word ‘sedition’ in its ordinary natural
signification denotes a tumult, an insurrection, a popular
commotion, or an uproar; it implies violence or lawlessness in
some form….”
In that case, the learned Judge was charging the Jury in respect
of the indictment which contained the charge of seditious libel by
a publication by the defendant.”
28.6.1  Finally, while considering the applicability of Section 124A
of the IPC3, especially in the context of the Right guaranteed under
Article 19(1)(a) of the Constitution, this Court concluded: -
“It has not been questioned before us that the fundamental
right guaranteed by Article 19(1)(a) of the freedom of speech
and expression is not an absolute right. It is common ground that
the right is subject to such reasonable restrictions as would come
within the purview of clause (2), which comprises (a) security of
the State, (b) friendly relations with foreign States, (c) public order,
(d) decency or morality, etc. etc. With reference to the
constitutionality of Section 124-A or Section 505 of the Indian
Penal Code, as to how far
they are consistent with the
requirements of clause (2) of Article 19 with particular reference
to security of the State and public order, the section, it must be
noted, penalises any spoken or written words or signs or visible
representations, etc. which have the effect of bringing, or which
attempt to bring into hatred or contempt or excites or attempts to
excite disaffection towards the Government established by law.
Now, the expression “the Government established by law” has to
be distinguished from the persons for the time being engaged in
carrying on the administration. “Government established by law”
is the visible symbol of the State. The very existence of the State
will be in jeopardy if the Government established by law is
34 (1911-13) 22 Cox’s Criminal Law Cases, 1 at p. 3
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subverted. Hence, the continued existence of the Government
established by law is an essential condition of the stability of the
State. That is why “sedition”, as the offence in Section 124-A has
been characterised, comes, under Chapter VI relating to offences
against the State. Hence, any acts within the meaning of Section
124-A which have the effect of subverting the Government by
bringing that Government into contempt or hatred, or creating
disaffection against it, would be within the penal statute because
the feeling of disloyalty to the Government established by law or
enmity to it imports the idea of tendency to public disorder by the
use of actual violence or incitement to violence. In other words,
any written or spoken words, etc. which have implicit in them the
idea of subverting Government by violent means, which are
compendiously included in the term “revolution”, have been made
penal by the section in question. But the section has taken care to
indicate clearly that strong words used to express disapprobation
of the measures of Government with a view to their improvement
or alteration by lawful means would not come within the section.
Similarly, comments, however strongly worded, expressing
disapprobation of actions of the Government, without exciting those
feelings which generate the inclination to cause public disorder by
acts of violence, would not be penal. In other words, disloyalty to
Government established by law is not the same thing
as
commenting in strong terms upon the measures or acts of
Government, or its agencies, so as to ameliorate the condition of
the people or to secure the cancellation or alteration of those acts
or measures by lawful means, that is to say, without exciting those
feelings of enmity and disloyalty which imply excitement to public
disorder or the use of violence.
It has not been contended before us that if a speech or a
writing excites people to violence or have the tendency to create
public disorder, it would not come within the definition of “sedition”.
What has been contended is that a person who makes a very
strong speech or uses very vigorous words in a writing directed to
a very strong criticism of measures of Government or acts of
public officials, might also come within the ambit of the penal
section. But in our opinion, such words written or spoken would
be outside the scope of the section. In this connection, it is pertinent
to observe that the security of the State, which depends upon the
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maintenance of law and order is the very basic consideration upon
which legislation, with a view to punishing offences against the
State, is undertaken. Such a legislation has, on the one hand, fully
to protect and guarantee the freedom of speech and expression,
which is the sine qua non of a democratic form of Government
that our Constitution has established. This Court, as the custodian
and guarantor of the fundamental rights of the citizens, has the
duty cast upon it of striking down any law which unduly restricts
the freedom of speech and expression with which we are
concerned in this case. But the freedom has to be guarded against
becoming a licence for vilification and condemnation of the
Government established by law, in words which incite violence or
have the tendency to create public disorder. A citizen has a right
to say or write whatever he likes about the Government, or its
measures, by way of criticism or comment, so long as he does not
incite people to violence against the Government established by
law or with the intention of creating public disorder. The Court
has, therefore, the duty cast upon it of drawing a clear line of
demarcation between the ambit of a citizen’s fundamental right
guaranteed under Article 19(1)(a) of the Constitution and the power
of the legislature to impose reasonable restrictions on that
guaranteed right in the interest of, inter alia, security of the State
and public order.
We have, therefore, to determine how far the
Sections 124-A and 505 of the Indian Penal Code could be said to
be within the justifiable limits of legislation. If it is held, in
consonance with the views expressed by the Federal Court in the
case of Niharendu Dutt Majumdar v. King-Emperor31  that the
gist of the offence of “sedition” is incitement to violence or the
tendency or the intention to create public disorder by words spoken
or written, which have the tendency or the effect of bringing the
Government established by law into hatred or contempt or creating
disaffection in the sense of disloyalty to the State, in other words
bringing the law into line with the law of sedition in England, as
was the intention of the legislators when they introduced Section
124-A into the Indian Penal Code in 1870 as aforesaid, the law
will be within the permissible limits laid down in clause (2) of
Article 19 of the Constitution. If on the other hand we give a
literal meaning to the words of the section, divorced from all the
antecedent background in which the law of sedition has grown,
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as laid down in the several decisions of the Judicial Committee of
the Privy Council, it will be true to say that the section is not only
within but also very much beyond the limits laid down in clause
(2) aforesaid.
In view of the conflicting decisions of the Federal Court
and of the Privy Council, referred to above, we have to determine
whether and how far the provisions of Sections 124-A and 505 of
the Indian Penal Code have to be struck down as unconstitutional.
If we accept the interpretation of the Federal Court as to the gist
of criminality in an alleged crime of sedition, namely, incitement to
disorder or tendency or likelihood of public disorder or reasonable
apprehension thereof, the section may lie within the ambit of
permissible legislative restrictions on the fundamental right of
freedom of speech and expression. There can be no doubt that
apart from the provisions of clause (2) of Article 19, Sections
124-A and 505 are clearly violative of Article 19(1)(a) of the
Constitution. But then we have to see how far the saving clause,
namely, clause (2) of Article 19 protects the sections aforesaid.
Now, as already pointed out, in terms of the amended clause (2),
quoted above, the expression “in the interest of … public order”
are words of great amplitude and are much more comprehensive
then the expression “for the maintenance of”, as observed by this
Court in the case of Virendra v. State of Punjab35. Any law which
is enacted in the interest of
public order may be saved from the
vice of constitutional invalidity. If, on the other hand, we were to
hold that even without any tendency to disorder or intention to
create disturbance of law and order, by the use of words written
or spoken which merely create disaffection or feelings of enmity
against the Government, the offence of sedition is complete, then
such an interpretation of the sections would make them
unconstitutional in view of Article 19(1)(a) read with clause (2).
It is well settled that if certain provisions of law construed in one
way would make them consistent with the Constitution, and another
interpretation would render them unconstitutional, the Court would
lean in favour of the former construction. The provisions of the
sections read as a whole, along with the explanations, make it
reasonably clear that the sections aim at rendering penal only
35 (1958) SCR 308 at p. 317
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such activities as would be intended, or have a tendency, to create
disorder or disturbance of public peace by resort to violence. As
already pointed out, the explanations appended to the main body
of the section make it clear that criticism of public measures or
comment on Government action, however strongly worded, would
be within reasonable limits and would be consistent with the
fundamental right of freedom of speech and expression. It is only
when the words, written or spoken, etc. which have the pernicious
tendency or intention of creating public disorder or disturbance of
law and order that the law steps in to prevent such activities in the
interest of public order. So construed, the section, in our opinion,
strikes the correct balance between individual fundamental rights
and the interest of public order. It is also well settled that in
interpreting an enactment the Court should have regard not merely
to the literal meaning of the words used, but also take into
consideration the antecedent history of the legislation, its purpose
and the mischief it seeks to suppress [vide (1) Bengal Immunity
Company Limited v. State of Bihar36 and (2) R.M.D.
Chamarbaugwala v. Union of India37.] Viewed in that light, we
have no hesitation in so construing the provisions of the sections
impugned in these cases as to limit their application to acts involving
intention or tendency to create disorder, or disturbance of law and
order, or incitement to violence.
We may also consider the legal position, as it should
emerge, assuming that the main Section 124-A is capable of being
construed in the literal sense in which the Judicial Committee of
the Privy Council has construed it in the cases referred to above.
On that assumption, is it not open to this Court to construe the
section in such a way as to avoid the alleged unconstitutionality
by limiting the application of the section in the way in which the
Federal Court intended to apply it? In our opinion, there are
decisions of this Court which amply justify our taking that view of
the legal position. This Court, in the case of R.M.D.
Chamarbaugwalla v. Union of India37 has examined in detail
the several decisions of this Court, as also of the courts in America
and Australia. After examining those decisions, this Court came
to the conclusion that if the impugned provisions of a law come
36 (1955) 2 SCR 603
37 (1957) SCR 930
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within the constitutional powers of the legislature by adopting one
view of the words of the impugned section or Act, the Court will
take that view of the matter and limit its application accordingly,
in preference to the view which would make it unconstitutional on
another view of the interpretation of the words in question. In that
case, the Court had to choose between a definition of the
expression “Prize Competitions” as limited to those competitions
which were of a gambling character and those which were not.
The Court chose the former interpretation which made the rest of
the provisions of the Act, Prize Competitions Act (42 of 1955),
with particular reference to Sections 4 and 5 of the Act and Rules
11 and 12 framed thereunder, valid. The Court held that the penalty
attached only to those competitions which involved the element
of gambling and those competitions in which success depended to
a substantial degree on skill were held to be out of the purview of
the Act. The ratio decidendi in that case, in our opinion, applied
to the case in hand insofar as we propose to limit its operation
only to such activities as come within the ambit of the observations
of the Federal Court, that is to say, activities involving incitement
to violence or intention or tendency to create public disorder or
cause disturbance of public peace.”
(Emphasis supplied)
28.7 It may be noted here that the appeal of Kedar Nath Singh2
was dismissed by this Court, affirming the
view taken by the Courts
below that the speech, taken as a whole, was seditious.
28.8 This Court, thus, did not follow the decisions of the Privy
Council in Balgangadhar Tilak vs. Queen Empress30 and in King
Emperor vs. Sadashiv Narayan Bhalerao32 but held that the operation
of Section 124A of the IPC3 must be limited only to such activities as
come within the ambit of the observations of the Federal Court.
29. It may, therefore, be necessary to deal with the aforesaid
decisions of the Privy Council and that of the Federal Court in some
detail.
30. Accused, Sadashiv Narayan Bhalerao had distributed certain
pamphlets on 26.01.1943 in respect of which he was tried for having
committed offence punishable under Rule 38(5) read with Rule 34 of
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the Defence of India Rules. The relevant statutory provisions as quoted
in the decision of the Privy Council were :-
“The Defence of India Rules, which were made by the Central
Government under S. 2 of the Defence of India Act, 1939 (XXXV
of 1939) - so far as material - provided as follows :
“34.(6) prejudicial act’ means any act which is intended or is
likely-
…..
…..
…..
(e) to bring into hatred or contempt, or to excite disaffection
towards, His Majesty or the Crown Representative or the
Government established by law in British India or in any other
part of His Majesty’s dominions;
…..
…..
…..
(g) to cause fear or alarm to the public or to any section of the
public;
…..
…..
…..
34.(7) ‘prejudicial report’ means any report, statement or visible
representation, whether true or false, which, or the publishing
of which, is, or is an incitement to the commission of, a
prejudicial act as defined in this rule;
…..
…..
…..
38.(i) No person shall, without lawful authority or excuse,
…..
…..
…..
(c) make, print, publish or distribute any document containing,
or spread by any other means whatsoever, any prejudicial
report;
…..
…..
…..
(5) If any person contravenes any of the provisions of this
rule, he shall be punishable with imprisonment for a term which
may extend to five years or with fine or with both.”
30.1 The trial Magistrate had acquitted the accused. The appeal
by the Crown having been dismissed, the matter was
taken up before
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the Privy Council. Some of the relevant passages from the decision of
the Privy Council were: -
“Their Lordships are unable to accept the test laid down by the
learned Chief Justice, as applicable in India.
Their Lordships agree, for the purposes of the present appeal,
that there is no material distinction between r. 34, sub-r.6, sub-
para. (e), and S. 124A, Penal Code, though it might be suggested
that the words “an act which is intended or likely to bring” in the
Rule are wider than the words “brings or attempts to bring” in the
Code. They further agree with the learned Chief Justice that the
omission in the rule of the three explanations in the Code should
not lead to any difference in construction.
The word “sedition” does not occur either in S. 124A or in the
Rule; it is only found as a marginal note to S. 124A, and is not an
operative part of the section, but merely provides the name by
which the crime defined in the section will be known. There can
be no justification for restricting the contents of the section by the
marginal note. In England there is no statutory definition of sedition;
its meaning and content have been laid down in many decisions,
some of which are referred to by the Chief Justice, but these
decisions are not relevant when you have a statutory definition of
that which is termed sedition, as we have in the present case.
….
…..
  …..
In Wallace-Joshnson v. The King38 under sub-s.8 of S.326 of
the Criminal Code of the Gold Coast,
“seditious intention” was
defined as an intention “to bring into hatred or contempt or to
excite disaffection against. . . . . the Government of the Gold
Coast as by law established.” It was held by this Board that the
words were clear and unambiguous, and that incitement to violence
was not a necessary ingredient of the crime of sedition as thereby
defined.
In conclusion, their Lordships will only add that the
amendments of S.124A in 1898, the year after Tilak’s case (3), by
the inclusion of hatred or contempt and the addition of the second
38 (1940) A.C. 231
VINOD DUA v. UNION OF INDIA & Ors.
[UDAY UMESH LALIT, J.]
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and third explanations, did not affect or alter the construction of
the section laid down in Tilak’s case (3), and, in their opinion, if
the Federal Court, in Niharendu’s case (5) had given their attention
to Tilak’s case (3), they should have recognized it as an authority
on the construction of S.124A by which they were bound.
Their Lordship are accordingly of opinion that the appeal
should be allowed and that the judgments and orders of the courts
below should be set aside, and that it should be declared that it is
not an essential ingredient of a prejudicial act as defined in sub-
para. (e) of r.34, sub-r.6, of the Defence of India Rules that it
should be an act which is intended or is likely to incite to public
disorder.”
31. We may also note the submission39 made on behalf of
Balgangadhar Tilak before the Privy Council which was paraphrased
in the report as under: -
“Asquith, Q.C. (Mayne, G. H. Blair, and W.C. Bonnerjee with
him), for the petitioner, contended that this was a case in which
an appeal should be admitted. The misdirection as to the meaning
of Art.124A of the Penal Code raised a question of great and
general importance within the meaning of Reg v. Bertrand. (1)
The Judge’s direction was objected to in that it defined the offence
created by S.124A in terms too wide, to the effect that disaffection
meant simply absence of affection, that it meant a feeling (not
translated into overt act) of hatred,
enmity, dislike, hostility,
contempt, and any form of ill-will to the Government; that disloyalty
was perhaps the best term, and that it comprehended every possible
form of bad feeling to the Government; that a man must not make
or try to make others feel enmity of any kind against the
Government; that if a man expresses condemnation of the
measures legislative or executive of the Government he was within
his right, but that if he went further and held up the Government
itself to the hatred and contempt of his readers by the imputation
of motives or by denouncing its foreign origin or character, that
then he was guilty under the Section. Reference was made to the
definition of the word “disaffection” by Petheram C.J. in Queen
Empress v. Jogendra Chunder Bose and Others23.
39 (1897) LR 25 I.A. 1 at 6
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It was contended that Tilak’s comments had not exceeded what
in England would be considered within the functions of a public
journalist. It was further contended that the misdirection complained
of was of the greatest importance, not merely to the petitioner,
but to the whole of the Indian press, and also to all the Indian
subjects of the Crown. It affected injuriously the liberty of the
press, the right to free speech and public meeting, and the right to
petition for redress of grievances.”
31.1 In this respect, the address40 made by Balgangadhar Tilak
to the Jury, during the course of his trial, may also be noted. Some of the
passages from the address were :-
“To excite feelings of disaffection means that by your act you
must heighten feelings of disaffection when they exist or create
them when they do not. If you do not do anything to excite feelings,
if you merely express, if you merely report, if you only express
sentiments which exist at the time, surely your act does not come
under Section 124A. Nay, more, you may create a feeling of
disapprobation. I can say with impunity something is bad; it ought
to be remedied. I have to write; I have a right to do that and if I
find fault it is only natural that some ill-feeling is created. . . . So in
this approbation some ill feeling is necessarily implied. That is the
meaning of Explanation 2 to the Section; it refers to “Comments
expressing disapprobation of the measures of the Government.”
When I say
that Government is going wrong, evidently, I say
something which the authorities may not like. That is not sedition;
if that were so, there could be no progress at all and we shall have
to be content at the end of the 20th century with what we have at
present. True progress comes of agitation; and you are bound to
consider the defects pointed out and discussed and the reforms
proposed and to look to the real intention of the man. …..
…..
…..
…..
Then there is another expression to which I wish to draw your
attention; and it is “Government established by law in British
India”. ‘Government’ here does not mean the Executive or the
Judiciary but it means Government in the abstract. The word
40 “Trial of Tilak”: 2nd Edition., published by Publications Division, Ministry of
Information and Broadcasting, Government of India.
VINOD DUA v. UNION OF INDIA & Ors.
[UDAY UMESH LALIT, J.]
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‘Government’ is defined in the Indian Penal Code and includes
any officer, even a polite constable. It does not mean that if I say
a police man is not doing his duty then I am guilty of sedition. Go
up higher. If certain officials have not been doing their duty, I
have every right to say that these officials should be discharged;
there should be stricter supervision and that particular departments
should be altered. So long as the word “Government” is qualified
by the words “established by Law,” how can it have the meaning
given to it by a definition of the word (“Government”) in a particular
part in the Penal Code? The qualifying phrase makes it a quite
different thing. It is “Government established by law.” We shall
have to come afterwards to the question whether Bureaucracy is
Government or not? Whether the British Government is solely
dependent upon the Bureaucracy? Can it not exist without it?
The Bureaucracy may say so, it may be very flattering to them to
say that the services of certain officers are indispensable to them
but is it the meaning conveyed by the expression “Government
established by law in British India”? Does it mean a “form of
administration” and is it consistent with that meaning? So far as
ideals are concerned they do not come under the Penal Code. I
may say that a certain system of administration is better suited to
the country and may try to spread that opinion. You may not agree
with me
but that is not the point. I have to express my opinion and
so long as I do not create any disaffection I am allowed to express
it freely. There can otherwise be no progress; progress would be
impossible unless you allow intelligent gentlemen the right to
express their opinion, to influence the public and get the majority
of the public on their side. …
…..
…..
…..
The question is, do you really intend as guardians of the liberty of
the Press to allow as much liberty here in India as is enjoyed by
the people of England? That is the point that you will have to very
carefully consider. I wish to show you that mine is an Article
written in controversy as a reply to an opponent. It was penned to
defend the interests of my community. You may not agree with
me in my views. Different communities have different views.
And every community must have opportunity to express its own
views. I have not come here to ask you any grace. I am prepared
to stand by the consequences of my act. There is no question
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about it. I am not going to tell you that I wrote the article in a fit of
madness. I am not a lunatic. I have written it believing it my duty
to write in the interest of the public in this way, believing that that
was the view of the community. I wanted to express it, believing
that the interests of the community would not be otherwise
safeguarded. Believe me when I say that it was both in the interest
of the people and Government and this view should be placed
before them. If you honestly go to the question like that it will be
your duty to give a verdict to not guilty, whatever may be your
opinion about me, even if you dislike me as much as you can. …..
…..
…..
…..
In a homogeneous country like England, there are parties like
Conservatives, Liberals, Radicals and Nationalists; each man takes
his own view of public events. Take, for instance, the Boer war;
there were people who disapproved of it, though they were a
very small minority. The majority of the nation determined upon
going to war and the war did take place. Those who represented
the view of the minority used arguments in favour of the Boers,
they were called the pro-Boer party, the others used arguments
against the Boers. So there was public opinion discussed on both
sides and from both points of view. That is the beauty of a free
press, which allows discussion in this way to the people of the
country upon a particular subject. …..”
32. Having considered the decisions of the Privy Council in
Balgangadhar Tilak30 and in King-Emperor v. Sadashiv Narayan
Bhalero32 we must now deal with the decision of the Federal Court in
Niharendu Dutt Majumdar v. The King Emperor31. A passage from
the decision of the Federal Court was quoted in Kedar Nath Singh v.
State of Bihar2 but immediately preceding passage from said decision
of the Federal Court is also noteworthy and was to the following effect:
“The time is long past when the mere criticism of Governments
was sufficient to constitute sedition, for it is recognized that the
right to utter honest and reasonable criticism is a source of strength
to a community rather than a weakness. Criticism of an existing
system of Government is not excluded, nor even the expression
of a desire for a different system altogether. The language of S.
VINOD DUA v. UNION OF INDIA & Ors.
[UDAY UMESH LALIT, J.]
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124-A of the Penal Code, if read literally, even with the explanations
attached to it, would suffice to make a surprising number of persons
in this country guilty of sedition; but no one supposes that it is to
be read in this literal sense. The language itself has been adopted
from English law, but it is to be remembered that in England the
good sense of jurymen can always correct extravagant
interpretations sought to be given by the executive Government
or even by Judges themselves, and if in this country that check is
absent, or practically absent, it becomes all the more necessary
for the Courts, when a case of this kind comes before them, to
put themselves so far as possible in the place of a jury, and to take
a broad view, without refining overmuch in applying the general
principles which  underlie the law of sedition to the particular
facts and circumstances brought to their notice.
What then are these general principles? We are content to adopt
the words of a learned Judge, which are to be found in every
book dealing with this branch of the criminal law: Page:
“Sedition……embraces all those practices, whether by word, deed
or writing, which are calculated to disturb the tranquillity of the
State and lead ignorant persons to subvert the Government. The
objects of sedition generally are to induce discontent and
insurrection, to stir up opposition to the Government, and to bring
the administration of justice into
contempt; and the very tendency
of sedition is to incite the people to insurrection and rebellion.
Sedition has been described as disloyalty in action, and the law
considers as sedition all those practices which have for their object
to excite discontent or disaffection, to create public disturbance,
or to lead to civil war; to bring into hatred or contempt the Sovereign
or Government, the laws or the constitution of the realm and
generally all endeavours to promote public disorder.” Fitzgerald,
J., in R. v. Sullivan33. It is possible to criticise one or two words or
phrases in this passage; “loyalty” and “dis-loyalty,” for example,
have a non-legal connotation also, and it is very desirable that
there should be no confusion between this and the sense in which
the words are used in a legal context; but, generally speaking, we
think that the passage accurately states the law as it is to be
gathered from an examination of a great number of judicial
pronouncements.”
(Emphasis supplied)
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33. These passages elucidate what was accepted by this Court in
preference to the decisions of the Privy Council in Balgangadhar Tilak30
and in King-Emperor v. Sadashiv Narayan Bhalerao32. The
statements of law deducible from the decision in Kedar Nath Singh2
are as follows: -
a) “the expression “the Government established by law” has to be
distinguished from the persons for the time being engaged in
carrying on the administration. “Government established by
law” is the visible symbol of the State. The very existence of
the State will be in jeopardy if the Government established by
law is subverted.”
…..
…..
…..
b) “any acts within the meaning of Section 124-A which have the
effect of subverting the Government by bringing that
Government into contempt or hatred, or creating disaffection
against it, would be within the penal statute because the feeling
of disloyalty to the Government established by law or enmity
to it imports the idea of tendency to public disorder by the use
of actual violence or incitement to violence.”
…..
…..
…..
c) “comments, however strongly worded, expressing disapprobation
of actions of the Government, without exciting those feelings
which generate the inclination to cause public disorder by acts
of violence, would not be penal.”
…..
…..
…..
d) “A citizen has a right to say or write whatever he likes about the
Government, or its measures, by way of criticism or comment,
so long as he does not incite people to violence against the
Government established by law or with the intention of creating
public disorder.”
…..
…..
…..
e) “The provisions of the Sections41 read as a whole, along with
the explanations, make it reasonably clear that the sections
aim at rendering penal only such activities as would be intended,
41 The reference was to Sections 124A and 505 of the IPC.
VINOD DUA v. UNION OF INDIA & Ors.
[UDAY UMESH LALIT, J.]
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or have a tendency, to create disorder or disturbance of public
peace by resort to violence.”
…..
…..
…..
f) “It is only when the words, written or spoken, etc. which have
the pernicious tendency or intention of creating public disorder
or disturbance of law and order that the law steps in to prevent
such activities in the interest of public order.”
…..
…..
…..
g) “we propose to limit its operation only to such activities as come
within the ambit of the observations of the Federal Court, that
is to say, activities involving incitement to violence or intention
or tendency to create public disorder or cause disturbance of
public peace.”
As the statement of law at placetum (e) above indicates, it applies
to cases under Sections 124-A and 505 of the IPC3. According to this
Court only such activities which would be intended or have a tendency
to create disorder or disturbance of public peace by resort to violence –
are rendered penal.
34. Some of the decisions cited by the learned Counsel, touching
upon the content and the extent of the right of the Press, may also be
adverted to at this stage.
A) In the case of Indian Express Newspapers (Bombay)
Private Ltd. & Ors. vs. Union of India & Ors.42, this Court observed:
“25. The freedom of press, as one of the members of the
Constituent Assembly said, is one of the items around which the
greatest and the bitterest of constitutional struggles have been
waged in all countries
where liberal constitutions prevail. The said
freedom is attained at considerable sacrifice and suffering and
ultimately it has come to be incorporated in the various written
constitutions. James Madison when he offered the Bill of Rights
to the Congress in 1789 is reported as having said: “The right of
freedom of speech is secured, the liberty of the press is expressly
declared to be beyond the reach of this Government.” [See
1 Annals of Congress (1789-96) p. 141]. Even where there are
42 (1985) 1 SCC 641
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no written constitutions, there are well established constitutional
conventions or judicial pronouncements securing the said freedom
for the people. The basic documents of the United Nations and of
some other international bodies to which reference will be made
hereafter give prominence to the said right. The leaders of the
Indian independence movement attached special significance to
the freedom of speech and expression which included freedom of
press apart from other freedoms During their struggle for freedom
they were moved by the American Bill of Rights containing the
First Amendment to the Constitution of the United States of
America which guaranteed the freedom of the press Pandit
Jawaharlal Nehru in his historic resolution containing the aims
and objects of the Constitution to be enacted by the Constituent
Assembly said that the Constitution should guarantee and secure
to all the people of India among others freedom of thought and
expression. He also stated elsewhere that “I would rather have a
completely free press with all the dangers involved in the wrong
use of that freedom than a suppressed or regulated press” [See
D.R. Mankekar: The Press under Pressure (1973) p. 25]. The
Constituent Assembly and its various committees and sub-
committees considered freedom of speech and expression which
included freedom of press. also as a precious right. The Preamble
to the Constitution says that it is intended to secure to all citizens
among others
liberty of thought, expression, and belief. It is
significant that in the kinds of restrictions that may be imposed on
the freedom of speech and expression, any reasonable restriction
imposeable in the public interest is not one enumerated in clause
(2) of Article 19. In Romesh Thappar v. State of
Madras20 and Brij Bhushan case43 this Court firmly expressed
its view that there could not be any kind of restrictions on the
freedom of speech and expression other than those mentioned in
Article 19(2) and thereby made it clear that there could not be
any interference with that freedom in the name of public interest.”
…..
…..
…..
32. In today’s free world freedom of press is the heart of social
and political intercourse. The press has now assumed the role of
the public educator making formal and non-formal education
43 AIR 1950 SC 129 : 1950 SCR 605
VINOD DUA v. UNION OF INDIA & Ors.
[UDAY UMESH LALIT, J.]
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possible in a large scale particularly in the developing world, where
television and other kinds of modern communication are not still
available for all sections of society. The purpose of the press is to
advance the public interest by publishing facts and opinions without
which a democratic electorate cannot make responsible judgments.
Newspapers being purveyors of news and views having a bearing
on public administration very often carry material which would
not be palatable to Governments and other authorities. The authors
of the articles which are published in newspapers have to be critical
of the actions of Government in order to expose its weaknesses.
Such articles tend to become an irritant or even a threat to power.
…..
…..
…..
33. Thomas I. Emerson in his article entitled “Toward, a General
Theory of the First Amendment” [(1963) 72 Yale Law Journal
877 at p. 906] while dealing with the role of the judicial institutions
in a democratic society and in particular of the Apex Court of
U.S.A. in upholding the freedom of speech and expression writes:
“The objection that our judicial institutions lack the political
power and prestige to perform an active role in protecting
freedom of expression against the will of the majority raises
more difficult questions. Certainly judicial institutions must
reflect the traditions, ideals and assumptions, and in the end
must respond to the needs, claims and expectations, of the
social order in which they operate. They must not, and ultimately
cannot, move too far ahead or lag too far behind. The problem
for the Supreme Court is one of finding the proper degree of
responsiveness and leadership, or perhaps better, of short-term
and long-term responsiveness. Yet in seeking out this position
the Court should not underestimate the authority and prestige
it has achieved over the years. Representing the “conscience
of the community” it has come to possess a very real power to
keep alive and vital the higher values and goals toward which
our society imperfectly strives.... Given its prestige, it would
appear that the power of the Court to protect freedom of
expression is unlikely to be substantially curtailed unless the
whole structure of our democratic institutions is threatened.”
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34. What is stated above applies to the Indian courts with equal
force. 
In Romesh 
Thappar 
case20, Brij 
Bhushan
case43, Express Newspapers (Private) Ltd. v. Union of
India44, Sakal Papers (P) Ltd. v. Union of India45 and Bennett
Coleman case46  this Court has very strongly pronounced in
favour of the freedom of press. Of these, we shall refer to some
observations made by this Court in some of them.
35. In Romesh Thappar case20 this Court said at p. 602:
“... (The freedom) lay at the foundation of all democratic
organisations, for without free political discussion no public
education, so essential for the proper functioning of the
processes of popular government, is possible. A freedom of
such amplitude might involve risks of abuse.... (But) ‘it is better
to leave a few of its noxious branches to their luxuriant growth,
than, by pruning them away, to injure the vigour of those yielding
the proper fruits’.”
36. In Bennett Coleman case46 A.N. Ray, C.J. on behalf of the
majority said at p. 796 (SCC p. 823, para 80) thus:
“The faith of a citizen is that political wisdom and virtue
will sustain themselves in the free market of ideas so long as
the channels of communication are left open. The faith in the
popular Government rests on the old dictum ‘let the people
have the truth and the freedom to discuss it and all will go
well’. The liberty of the press remains an ‘Ark of the Covenant’
in every democracy.... The newspapers give ideas. The
newspapers give
the people the freedom to find out what ideas
are correct.”
37. In the very same case, Mathew, J. observed at p. 818: (SCC
p. 846, paras 168, 169)
“The constitutional guarantee of freedom of speech is not
so much for the benefit of the press as it is for the benefit of
the public. The freedom of speech includes within its compass
the right of all citizens to read and be informed. In Time Inc.
v. Hill [385 US 374 : 17 L Ed 2d 456 : 87 S Ct 534 (1967)] the
U.S. Supreme Court said:
44 AIR 1958 SC 578 : 1959 SCR 12
45 AIR 1962 SC 305 : (1962) 3 SCR 842
46 (1972) 2 SCC 788 : AIR 1973 SC 106 : (1973) 2 SCR 757
VINOD DUA v. UNION OF INDIA & Ors.
[UDAY UMESH LALIT, J.]
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‘The constitutional guarantee of freedom of speech and
press are not for the benefit of the press so much as for the
benefit of all the people.’ “
In Griswold v. Connecticut47 the U.S. Supreme Court
was of the opinion that the right of freedom of speech and
press includes not only the right to utter or to print, but the right
to read.”
B)  This Court in the case of S. Rangarajan v. P. Jagjivan Ram
& Ors.48 held:
“36. The democracy is a Government by the people via open
discussion. The democratic form of Government itself demands
its citizens an active and intelligent participation in the affairs
of the community. The public discussion with people’s
participation is a basic feature and a rational process of
democracy which distinguishes it from all other forms of
Government. The democracy can neither work nor prosper
unless people go out to share their views. The truth is that
public discussion on issues relating to administration has positive
value. What Walter Lippmann said in another context is relevant
here:
“When men act on the principle of intelligence, they go out
to find the facts.... When they ignore it, they go inside
themselves and find out what is there. They elaborate their
prejudice instead of increasing their knowledge.”
43. Brandies, J., in Whitney v. California49 propounded
probably the most attractive free speech theory:
“... that the greatest menace to freedom is an inert people;
that public
discussion is a political duty;. .. It is hazardous to
discourage thought, hope and imagination; that the path of
safety lies in the opportunity to discuss freely supposed
grievances and proposed remedies; and that the fitting
remedy for evil counsels is good ones.”
45. The problem of defining the area of freedom of expression
when it appears to conflict with the various social interests
47 381 US 479, 482 : 14 L Ed 2d 510 : 85 SCt 1678 (1965)
48 1989 (2) SCC 574
49 274 US 357, 375-78 (1927) : 71 L Ed 1045
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enumerated under Article 19(2) may briefly be touched upon
here. There does indeed have to be a compromise between
the interest of freedom of expression and special interests.
But we cannot simply balance the two interests as if they are
of equal weight. Our commitment of freedom of expression
demands that it cannot be suppressed unless the situations
created by allowing the freedom are pressing and the
community interest is endangered. The anticipated danger
should not be remote, conjectural or far-fetched. It should have
proximate and direct nexus with the expression. The expression
of thought should be intrinsically dangerous to the public interest.
In other words, the expression should be inseparably locked
up with the action contemplated like the equivalent of a “spark
in a power keg”.
35. Reliance was also placed on the decision of the Constitution
Bench of this Court in The Superintendent, Central Prison, Fatehgarh
and another v. Dr. Ram Manohar Lohia50, which dealt with the
expression “Public Order” appearing in Article 19 (2) of the Constitution,
the relevant portion being :-
“9. …… The expression “public order” has a very wide
connotation. Order is the basic need in any organised society. It
implies the orderly state of society or community in which citizens
can peacefully pursue their normal activities of life. In the words
of an eminent Judge of the Supreme Court of America “the
essential rights are subject to the elementary need for order
without
which the guarantee of those rights would be a mockery”. The
expression has not been defined in the Constitution, but it occurs
in List II of its Seventh Schedule and is also inserted by the
Constitution (First Amendment) Act, 1951 in clause (2) of Article
19. The sense in which it is used in Article 19 can only be
appreciated by ascertaining how the Article was construed before
it was inserted therein and what was the defect to remedy which
the Parliament inserted the same by the said amendment. The
impact of clause (2) of Article 19 on Article 19(1)(a) before the
said amendment was subject to judicial scrutiny by this Court
in Romesh Thappar v. State of Madras20. There the Government
of Madras, in exercise of their powers under Section 9(1-A) of
50 AIR 1960 SC 633
VINOD DUA v. UNION OF INDIA & Ors.
[UDAY UMESH LALIT, J.]
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the Madras Maintenance of Public Order Act, 1949, purported to
issue an order whereby they imposed a ban upon the entry and
circulation of the journal called the “Cross Roads” in that State.
The petitioner therein contended that the said order contravened
his fundamental right to freedom of speech and expression. At
the time when that order was issued the expression “public order”
was not in Article 19(2) of the Constitution; but the words “the
security of the State” were there. In considering whether the
impugned Act was made in the interests of security of the State,
Patanjali Sastri, J., as he then was, after citing the observation of
Stephen in his Criminal Law of England, states:
“Though all these offences thus involve disturbances of
public tranquillity and are in theory offences against public order,
the difference between them being only a difference of degree,
yet for the purpose of grading the punishment to be inflicted in
respect of them they may be classified into different minor
categories as has been done by the Indian Penal Code. Similarly,
the Constitution, in formulating the varying criteria for
permissible legislation imposing restrictions on the fundamental
rights enumerated in Article 19(1), has placed in a distinct
category those offences against public order which aim at
undermining the security of the State or overthrowing it, and
made their prevention the sole justification for legislative
abridgement of freedom of speech and expression, that is to
say, nothing less than endangering the foundations of the State
or threatening its overthrow could justify curtailment of the
rights to freedom of speech and expression ….”
The learned Judge continued to state:
“The Constitution thus requires a line to be drawn in the
field of public order or tranquillity marking off, may be, roughly,
the boundary between those serious and aggravated forms of
public disorder which are calculated to endanger the security
of the State and the relatively minor breaches of the peace of
a purely local significance, treating for this purpose differences
in degree as if they were differences in kind.”
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The learned Judge proceeded further to state:
“We are therefore of opinion that unless a law restricting
freedom of speech and expression is directed solely against
the undermining of the security of the State or the overthrow
of it, such law cannot fall within the reservation under clause
(2) of Article 19, although the restrictions which it seeks to
impose may have been conceived generally in the interests of
public order.”
This decision establishes two propositions viz. (i) maintenance
of public order is equated with maintenance of public tranquillity;
and (ii) the offences against public order are divided into two
categories viz. (a) major offences affecting the security of the
State, and (b) minor offences involving breach of purely local
significance. This Court in Brij Bhushan v. State of
Delhi43 followed the earlier decision in the context of Section
7(1)(c) of the East Punjab Public Safety Act, 1949. Fazl Ali, J., in
his dissenting judgment gave the expression “public order” a wider
meaning than that given by the majority view. The learned Judge
observed at p. 612 thus:
“When we approach the matter in this way, we find that
while ‘public disorder’ is wide enough to cover a small riot or
an affray and other cases where peace is disturbed by, or
affects, a small group of persons, ‘public unsafety’ (or insecurity
of the State), will usually be connected with serious internal
disorders and such disturbances of public tranquillity as
jeopardize the
security of the State.”
This observation also indicates that “public order” is equated
with public peace and safety. Presumably in an attempt to get
over the effect of these two decisions, the expression “public order”
was inserted in Article 19(2) of the Constitution by the Constitution
(First Amendment) Act, 1951, with a view to bring in offences
involving breach of purely local significance within the scope of
permissible restrictions under clause (2) of Article 19. After the
said amendment, this Court explained the scope of Romesh
Thapper’s case20 in State of Bihar v. Shailabala Devi51. That
case was concerned with the constitutional validity of Section
51 (1952) SCR 654
VINOD DUA v. UNION OF INDIA & Ors.
[UDAY UMESH LALIT, J.]
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4(1)(a) of the Indian Press (Emergency Powers) Act, 1931. It
deals with the words or signs or visible representations which
incite to or encourage, or tend to incite to or encourage the
commission of any offence of murder or any cognizable offence
involving violence. Mahajan, J., as he then was, observed at p.
660:
“The deduction that a person would be free to incite to
murder or other cognizable offence through the press with
impunity drawn from our decision in Romesh Thapper
case could easily have been avoided as it was avoided by
Shearer, J., who in very emphatic terms said as follows:
‘I have read and re-read the judgments of the Supreme
Court, and I can find nothing in them myself which bear
directly on the point at issue, and leads me to think that, in
their opinion, a restriction of this kind is no longer
permissible.’”
The validity of that section came up for consideration after
the Constitution (First Amendment) Act, 1951, which was
expressly made retrospective, and therefore the said section
clearly fell within the ambit of the words “in the interest of
public order”. That apart the observations of Mahajan, J., as
he then was, indicate that even without the amendment that
section would have been good inasmuch as it aimed to prevent
incitement to murder.
10. The words “public order” were also understood in America
and England as offences against public safety or public peace.
The 
Supreme 
Court 
of
America 
observed
in Cantewell v. Connecticut52 thus:
“The offence known as breach of the peace embraces
a great variety of conduct destroying or menacing public
order and tranquillity. It includes not only violent acts and
words likely to produce violence in others. No one would
have the hardihood to suggest that the principle of freedom
of speech sanctions incitement to riot … When clear and
present danger of riot, disorder, interference with traffic
52 (1940) 310 US 296, 308
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upon the public streets, or other immediate threat to public
safety, peace, or order appears, the power of the State to
prevent or punish is obvious.”
The American decisions sanctioned a variety of restrictions
on the freedom of speech in the interests of public order. They
cover the entire gamut of restrictions that can be imposed under
different heads in Article 19(2) of our Constitution. The
following summary of some of the cases of the Supreme Court
of America given in a well-known book on Constitutional law
illustrates the range of categories of cases covering that
expression. “In the interests of public order, the State may
prohibit and punish the causing of ‘loud and raucous noise’ in
streets and public places by means of sound amplifying
instruments, regulate the hours and place of public discussion,
and the use of the public streets for the purpose of exercising
freedom of speech; provide for the expulsion of hecklers from
meetings and assemblies, punish utterances tending to incite
an immediate breach of the peace or riot as distinguished from
utterances causing mere ‘public inconvenience, annoyance or
unrest’”. In England also Acts like Public Order Act, 1936,
Theatres Act, 1843 were passed: the former making it an
offence to use threatening, abusive or insulting words or
behaviour in any public place or at any public meeting with
intent to provoke a breach of the peace or whereby a breach
of the peace is likely to be caused, and the latter
was enacted
to authorise the Lord Chamberlain to prohibit any stage play
whenever he thought its public performance would militate
against good manners, decorum and the preservation of the
public peace. The reason underlying all the decisions is that if
the freedom of speech was not restricted in the manner the
relevant Acts did, public safety and tranquillity in the State
would be affected.
11. 
But in India under Article 19(2) this wide concept of
“public order” is split up under different heads. It enables the
imposition of reasonable restrictions on the exercise of the right
to freedom of speech and expression in the interests of the
security of the State, friendly relations with foreign States, public
VINOD DUA v. UNION OF INDIA & Ors.
[UDAY UMESH LALIT, J.]
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order, decency or morality, or in relation to contempt of court,
defamation or incitement to an offence. All the grounds
mentioned therein can be brought under the general head
“public order” in its most comprehensive sense. But the
juxtaposition of the different grounds indicates that, though
sometimes they tend to overlap, they must be ordinarily intended
to exclude each other. “Public order” is therefore something
which is demarcated from the others. In that limited sense,
particularly in view of the history of the amendment, it can be
postulated that “public order” is synonymous with public peace,
safety and tranquillity.”
(Emphasis supplied)
36. Having dealt with the applicability of Section 124A of the
IPC3 and the content of the rights of a citizen and of the Press, the next
stage is to see whether the petitioner is right in his submission that no
offence as alleged, has been made out. We need not set out the principles,
on the basis of which an FIR or a Complaint or pending Criminal
proceedings can be quashed. Those principles, post the decision of this
Court in State of Haryana and Others vs. Bhajan Lal and Others53
are well settled. We may however refer to two decisions of this Court
where, in the context of the alleged offences under Sections 153A and
505 of the IPC3, the criminal proceedings were quashed.
A) In Manzar Sayeed Khan vs. State of Maharashtra and
Another54, it was laid down that the requisite
intention to promote feelings
of enmity or hatred between different classes of people, must be judged
primarily by “the language of the book and the circumstances in which
the book was written”; and accepted that the effect of the words must
be judged from the standards of reasonable, strong minded, firm and
courageous men. It was observed: -
“16. Section 153-A IPC, as extracted hereinabove, covers a case
where a person by words, either spoken or written, or by signs or
by visible representations or otherwise, promotes or attempts to
promote, disharmony or feelings of enmity, hatred or ill will between
different religious, racial, language or regional groups or castes or
communities or acts prejudicial to the maintenance of harmony or
53 (1992) Suppl 1 SCC 335
54 (2007) 5 SCC 1
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is likely to disturb the public tranquillity. The gist of the offence is
the intention to promote feelings of enmity or 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
under Section 153-A IPC and the prosecution has to prove prima
facie the existence of mens rea on the part of the accused. The
intention has to be judged primarily by the language of the book
and the circumstances in which the book was written and published.
The matter complained of within the ambit of Section 153-A must
be read as a whole. One cannot rely on strongly worded and
isolated passages for proving the charge nor indeed can one take
a sentence here and a sentence there and connect them by a
meticulous process of inferential reasoning.
17.  In Ramesh v. Union of India55 this Court held that TV
serial Tamas did not depict communal tension and violence and
the provisions of Section 153-A IPC would not apply to it. It was
also not prejudicial to the national integration falling under Section
153-B IPC. Approving the observations of Vivian Bose, J.
in Bhagwati Charan Shukla v. Provincial Govt.56 the Court
observed that:
“the effect of the words must 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. … It is the standard of
ordinary reasonable man or as
they say in English law ‘the
man on the top of a Clapham omnibus’.” (Ramesh case55,
SCC p. 676, para 13)”
B) In Patricia Mukhim vs. State of Meghalaya and Others57,
the requisite intention to bring out the basic ingredient of offences under
Sections 153A and 505 (1) (c) of the IPC3 was found to be absent. This
Court observed:-
“13. In the instant case, applying the principles laid down by this
Court as mentioned above, the question that arises for our
consideration is whether the Facebook post-dated 04.07.2020 was
55 (1988) 1 SCC 668
56 AIR 1947 Nag 1
57 2021 SCC OnLine SC 258
VINOD DUA v. UNION OF INDIA & Ors.
[UDAY UMESH LALIT, J.]
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intentionally made for promoting class/community hatred and has
the tendency to provoke enmity between two communities. A close
scrutiny of the Facebook post would indicate that the agony of
the Appellant was directed against the apathy shown by the Chief
Minister of Meghalaya, the Director General of Police and the
Dorbar Shnong of the area in not taking any action against the
culprits who attacked the non-tribals youngsters. The Appellant
referred to the attacks on nontribals in 1979. At the most, the
Facebook post can be understood to highlight the discrimination
against nontribals in the State of Meghalaya. However, the
Appellant made it clear that criminal elements have no community
and immediate action has to be taken against persons who had
indulged in the brutal attack on non-tribal youngsters playing
basketball. The Facebook post read in its entirety pleads for
equality of non-tribals in the State of Meghalaya. In our
understanding, there was no intention on the part of the Appellant
to promote class/community hatred. As there is no attempt made
by the Appellant to incite people belonging to a community to
indulge in any violence, the basic ingredients of the offence under
Sections 153 A and 505(1)(c) have not been made out. Where
allegations made in the FIR or the complaint, even if they are
taken on their face value and accepted in their entirety do not prima
facie constitute any offence or make out a
case against the
accused, the FIR is liable to be quashed58.”
37. According to the respondents, apart from the offences spelt
out in the FIR, certain other offences are also made out. The instant
case, therefore, has to be seen from both the perspectives, namely
whether any of the offences as stated in the FIR and whether those
referred to in the submissions of the respondents, are made out or not.
38. Leaving aside two incorrect statements made in the FIR which
were dealt with in paragraph 27 hereinabove, the following assertions
from the talk show are relied upon to say that the offences as alleged
are made out: -
“i)
Our biggest failure has been that we do not
have enough facilities to carry out testing.
58 State of Haryana and others v. Bhajan Lal and others, 1992 Supp (1) SCC 335
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ii)
Till now we do not have any information how
many (PPE suits, N95 masks and masks of
3 ply) we have and how many will become
available by when.
iii)
The Ventilators needed in other countries
and in India, respiratory devices and
sanitisers were being exported till
24.3.2020 instead of keeping these for use
in our country.
iv)
That supply chains got disrupted due to
blockage of roads and now it is being heard
that transportation of essential goods has
been allowed.
v)
It is not difficult to imagine that when the
supply chains have been closed, when the
shops are closed, some people had gone to
the extent of fearing food riots which have
not happened in our country could happen.
vi)
When people started returning from Mumbai
…. That should have been a big signal for
the Government about the effect the
complete lockdown in the country can bring
about, but no lessons were learnt.”
39. We now consider these statements.
A) It is common knowledge that the countries all over the world
found themselves wanting in terms of infrastructure and facilities to cope
up with the effects of Covid-19 Pandemic. Considering the size of the
population of this country, the testing facilities to gauge and check the
spread and effect of the Pandemic, at least in the initial stages of the
surge, were not exactly adequate. If in that light, the petitioner made any
comments about testing facilities or PPE Suits, N-95 masks and masks
of 3 ply, those comments in first two
statements, cannot be anything
other than appraisal of the situation then obtaining. It was not even the
case of the respondents that these two statements were factually
incorrect.
B) With regard to the third statement, the contention of the
respondents was that the ban on export was imposed on 19.03.2020 and
VINOD DUA v. UNION OF INDIA & Ors.
[UDAY UMESH LALIT, J.]
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the said statement was therefore not quite correct. It was also submitted
that the Petitioner produced no evidence of actual exports before the
ban was imposed on 19.03.2020 and that there were no exports
immediately proceeding the imposition of ban.
C)  The effect of Nation-wide lockdown which came into effect
from the midnight intervening 24.03.2020 and 25.03.2020, according to
the Petitioner, resulted in disruption of supply chains due to blockage of
roads. It was the submission of the respondents that by Consolidated
Guidelines issued on 28.03.2020 (which was stated to be an order under
Section 188 of the IPC3), adequate steps were directed to be taken to
ensure that there was no disruption in supply of essential goods.  It must
be stated that the fourth statement did acknowledge that the transportation
of essential goods was being allowed and, in that sense, it was more or
less correct depiction of the state of affairs then prevailing.
D) The emphasis to a great extent, were, however, put on the
fifth and the sixth statements and it was strongly contended that said
statements not only gave factually incorrect information but amounted
to incite the general public and that it was because of such incorrect
information, the movement of migrant workers had begun.
On the other hand, reliance was placed by the petitioner on the
interview of former Chief Statistician reported on 28.03.2020 that if food
requirements of
migrant workers were not fulfilled amid countrywide
lockdown, food riots could be a real possibility.  It was submitted that by
the time the talk show was uploaded, the movement of migrant workers
had already started and was at the peak.
40. It may be relevant to note here that Writ Petition (C) No.468
of 2020 (Alakh Alok Srivastava v. Union of India etc.) and connected
petition59, filed on 29.03.2020 by two Advocates, sought to highlight the
plight of migrant workers.  These matters came up on 31.03.2020 before
this Court when it was observed:-
“In the instant writ petitions, we are concerned about the migrant
labourers who have started leaving their places of work for their
home villages/towns located at distant places. For example,
thousands of migrant labourers left Delhi to reach their homes in
the States Uttar Pradesh and Bihar, by walking on the highways.
59 Writ Petition (C) No.469 of 2020 (Rashmi Bansal v. Union of India)
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We are informed that the labourers who are unemployed due to
lock down were apprehensive about their survival. Panic was
created by some fake news that the lock down would last for
more than three months.
…..
…..
…..
During the course of hearing, the Solicitor General of India made
a statement that the information received by the Control Room
today at 2.30 A.M. showed that 21,064 relief camps have been
set up by various State Governments/Union Territories where the
migrant labourers have been shifted and they are being provided
with basic amenities like food, medicines, drinking water, etc.
According to the Status Report, 6,66,291 persons have been
provided shelters and 22,88,279 persons have been provided food.
…..
…..
…..
The Solicitor General of India has also referred to the Status Report
to make a submission that the exodus of migrant labourers was
triggered due to panic created by some fake/misleading news and
social media.
…..
…..
…..
While informing this Court about the steps taken by the
Government of India to ensure that the migrant labourers are being
shifted to nearby shelters/relief camps from place they were found
to be walking and basic amenities being provided to them, the
Union of India has sought a direction from this Court to the State
Governments and the Union Territories to implement the directions
issued by the Central Government. A further direction was sought
to prevent fake and inaccurate reporting whether intended or not,
either
by electronic print or social medial which will cause panic
in the society.
…..
…..
…..
The migration of large number of labourers working in the cities
was triggered by panic created by fake news that the lock down
would continue for more than three months. Such panic driven
migration has caused untold suffering to those who believed and
acted on such news. In fact, some have lost their lives in the
VINOD DUA v. UNION OF INDIA & Ors.
[UDAY UMESH LALIT, J.]
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process. It is therefore not possible for us to overlook this menace
of fake news either by electronic, print or social media.
Section 54 of the Disaster Management Act, 2005 provides for
punishment to a person who makes or circulates a false alarm or
warning as to disaster or its severity or magnitude, leading to panic.
Such person shall be punished with imprisonment which may
extend to one year or with fine.
Disobedience to an order promulgated by a public servant would
result in punishment under section 188 of the Indian Penal Code.
An advisory which is in the nature of an order made by the public
authority attracts section 188 of the Indian Penal Code.
We trust and expect that all concerned viz., State Governments,
Public Authorities and Citizens of this country will faithfully comply
with the directives, advisories and orders issued by the Union of
India in letter and spirit in the interest of public safety.
In particular, we expect the Media (print, electronic or social) to
maintain a strong sense of responsibility and ensure that unverified
news capable of causing panic is not disseminated. A daily bulletin
by the Government of India through all media avenues including
social media and forums to clear the doubts of people would be
made active within a period of 24 hours as submitted by the Solicitor
General of India. We do not intend to interfere with the free
discussion about the pandemic, but direct the
media refer to and
publish the official version about the developments.”
41. The developments referred to in the aforementioned Order
show that the movement of migrant workers back to their hometown or
villages had posed an alarming situation.  The writ petitions did bring out
those issues, in response to which the concern shown by the Government
and the steps undertaken by the authorities were placed on record.  This
Court suggested that a daily bulletin by the Government of India be
made active so that correct and precise information was made available
to the general public and the exodus of migrant workers could thus be
checked.  However, the Order also shows the magnitude of the problem
which required about 6,66,291 persons to be provided shelter and
22,88,279 persons to be provided food.
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42. What was prevailing on 30.03.2020 was therefore clear and
migrant workers in huge numbers were moving towards their hometowns/
villages. In the circumstances, there would naturally be some
apprehension about the shelter and food to be provided to them en-
route.  The former Chief Statistician had expressed a possibility with
the intent to invite the attention of the authorities.  If the petitioner in his
talk show uploaded on 30.03.2020, that is even before the matter was
taken up by this Court, made certain assertions in his 5th and 6th statement,
he would be within his rights to say that as a Journalist he was touching
upon issues of great concern so that adequate attention could be bestowed
to the prevailing problems.  It cannot be said that the petitioner was
spreading any false information or rumours.  It is not the case of the
respondents that the migrant workers started moving towards their
hometowns/villages purely as a result of the statements made by the
petitioner.  Such movement of migrant workers had begun long before.
In the circumstances, these statements can neither be taken to be an
attempt to incite migrant workers to start moving towards their
hometowns or villages nor can it be taken to be an incitement for causing
any food riots.
 The situation was definitely alarming around 30.03.2020 and as a
journalist if the petitioner showed some concern, could it be said that he
committed offences as alleged.
43. The Principles culled out
in paragraph 33 hereinabove from
the decision of Court in Kedar Nath Singh2 show that a citizen has a
right to criticize or comment upon the measures undertaken by the
Government and its functionaries, so long as he does not incite people to
violence against the Government established by law or with the intention
of creating public disorder; and that it is only when the words or
expressions have pernicious tendency or intention of creating public
disorder or disturbance of law and order that Sections 124A and 505 of
the IPC3 must step in.
In our view, the statements by the petitioner as mentioned
hereinabove, if read in the light of the principles emanating from the
decision in Kedar Nath Singh2 and against the backdrop of the
circumstances when they were made, can at best be termed as expression
of disapprobation of actions of the Government and its functionaries so
that prevailing situation could be addressed quickly and efficiently. They
were certainly not made with the intent to incite people or showed
VINOD DUA v. UNION OF INDIA & Ors.
[UDAY UMESH LALIT, J.]
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tendency to create disorder or disturbance of public peace by resort to
violence. The petitioner was within the permissible limits laid down in
the decision of this Court in Kedar Nath Singh2.  It may be that certain
factual details in the 3rd statement regarding the date when the ban came
into effect were not completely correct. However, considering the drift
of the entire talk show and all the statements put together it cannot be
said that the petitioner crossed the limits set out in the decision of this
Court in Kedar Nath Singh2.
44. We are, therefore, of the firm view that the prosecution of the
petitioner for the offences punishable under Sections 124A and 505 (1)
(b) of the IPC3 would be unjust. Those offences, going by the allegations
in the FIR and other attending circumstances, are not made out at all
and any prosecution in respect thereof would be violative of the rights of
the petitioner guaranteed under Article 19(1)(a) of the Constitution.
45. The other offending provision referred to in the FIR is Section
501 of the IPC3 which is printing or engraving a matter which is
defamatory to any person. As a matter of fact, the cognizance with
respect to an offence punishable under Chapter XXI of the IPC3 (Section
501 of the IPC3 is part of said Chapter) can be taken by a Court only
upon a complaint made by the person aggrieved. Without going into such
technicalities, in our view, there is nothing defamatory
in the statements
made by the petitioner.  Further, the statements of the petitioner would
be covered by the second and third exceptions to Section 499 of the
IPC3. In some of the cases decided by this Court, for example, in
Jawaharlal Darda and Others vs. Manoharrao Ganpatrao
Kapsikar and Another60, Rajendra Kumar Sitaram Pande  and
Others vs. Uttam and Another61,  Vivek Goenka and Others vs. Y.R.
Patil62, and S. Khushboo vs. Kanniammal and Another63, relying on
exceptions to Section 499 of the IPC3, the criminal proceeding initiated
against the accused were quashed. Thus, the instant proceedings, in so
far as Section 501 IPC3 is concerned, also deserve to be quashed.
46. The other provision referred to in the FIR was Section 268 of
the IPC3 which is nothing but the definition of “Public Nuisance” and is
not a penal provision in itself which prescribes any punishment. It was
60 (1998) 4 SCC 112
61 (1999) 3 SCC 134
62 (2000) 9 SCC 87
63 (2010) 5 SCC 600
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also not the case of the respondent that any penal provision involving
element of “Public Nuisance” was attracted in the instant case.
47. Thus, all the offences set out in the FIR, in our considered
view, are not made out at all.
48. We now turn to the case with regard to the offences which
were not spelt out in the FIR.  It was contended by the respondents that
in addition to the offences specifically set out in the FIR, the petitioner
would also be guilty of the offences punishable under Sections 52 and 54
of the DM Act1 and Section 188 of the IPC3.  According to the
respondents, the statements made by the petitioner during the Talk Show
amounted to circulating a false alarm and would therefore be covered
by Section 54 of the DM Act1; and that the petitioner would also be
guilty of having violated communications dated 24.3.2020 and 28.3.2020
(set out earlier in paragraph 14) and thereby committed offences under
Section 188 of the IPC3.
49. The response of Mr. Vikas Singh, learned Senior Advocate
for the petitioner was that by virtue of Section 6064 of the DM Act1, the
offences punishable under the provisions of the DM Act1 could be taken
cognizance of only upon a complaint being made by the certain designated
officials or functionaries.  Similarly, in respect of offence under Section
188 of the IPC3, by virtue of Section 195 of the Code, cognizance could
be taken only upon a complaint in writing made by the concerned public
servant whose orders were
allegedly violated or by someone who was
administratively superior to such public servant.  These statutory
requirements having not been satisfied, the submission that the offences
punishable under the DM Act1 and under Section 188 of the IPC3 were
made out, was required to be rejected.  Reliance was placed by him on
the decisions of this Court in Daulat Ram v. State of Punjab65 and in C.
Muniappan and Others v. State of Tamil Nadu66 as well as cases
referred to in C. Muniappan66.
64 60. Cognizance of offences.—No court shall take cognizance of an offence under this
Act except on a complaint made by—
(a) the National Authority, the State Authority, the Central Government, the State
Government, the District Authority or any other authority or officer authorised in this
behalf by that Authority or Government, as the case may be; or
(b) any person who has given notice of not less than thirty days in the manner prescribed,
of the alleged offence and his intention to make a complaint to the National Authority,
the State Authority, the Central Government, the State Government, the District
Authority or any other authority or officer authorised as aforesaid
65 AIR 1962 SC 1206
66 (2010) 9 SCC 567
VINOD DUA v. UNION OF INDIA & Ors.
[UDAY UMESH LALIT, J.]
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The other facet of the submission was that even on merits, the
statements made by the petitioner in his Talk Show did not satisfy the
requirements of both said statutory provisions and therefore the petitioner
was entitled to the relief prayed for.
50. In reply, Mr. S.V. Raju, learned Additional Solicitor General
submitted that the injunctions spelt out in Section 60 of the DM Act1 and
Section 195 of the Code would come into play only at the stage of
cognizance by the Court and as such there would not be any bar to the
invocation of these provisions at a stage anterior to the stage of cognizance.
51. We need not go into the technical issue whether the initiation
of the proceedings in respect of the offences punishable under DM Act1
and/or under Section 188 of the IPC3 could only be after an appropriate
complaint would be made in writing as submitted by the petitioner, as in
our considered view, none of these offences as submitted by the
respondents get attracted in the instant matter.
A) Section 188 of the IPC3 deals with “Disobedience to order
duly promulgated by public servant”. If a person, though directed inter
alia to abstain from a certain act, disobeys a direction issued by a Public
Servant lawfully empowered to promulgate such direction or order,
Section 188 of the IPC3 may get attracted. The communications dated
24.3.2020 and 28.3.2020 which have been quoted earlier were pressed
into service and it was
submitted that said communications which everyone
was bound and obliged to follow, were violated by the petitioner. We
have gone through these communications and in our view, there was
nothing therein which was violated as a result of the Talk Show uploaded
by the petitioner.  An attempt was then made to rely on the order dated
31.3.20207 to submit that this Court had issued certain directions and
expected the media to maintain strong sense of responsibility and ensure
that unverified news capable of causing panic was not disseminated.
First, the direction was issued on 31.3.2020 i.e. after the episode was
uploaded on 30.3.2020 and secondly, we have not found any infirmity or
illegality in the statements made by the petitioner, on the basis of which
it could be possibly be said that he was attempting to disseminate any
news capable of causing panic. Consequently, the provisions of Section
188 of the IPC3 would not get attracted at all.
B) Section 52 of the DM Act1 deals with the lodging of a false
claim by a person for obtaining any relief, assistance, etc., which provision
has nothing to do with the present fact situation. Section 54 deals with
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cases where a person makes or circulates a false alarm or warning as to
disaster or its severity or magnitude, leading to panic. We have already
held that the statements made by the petitioner were within the limits
prescribed by the decision of this Court in Kedar Nath Singh2 and that
the statements were without any intent to incite people for creating public
disorder.  It was not even suggested that as a result of statements made
by the petitioner any situation of panic had resulted in any part of the
country.
52. In the circumstances, without going into the technicalities
whether the initiation of the proceedings could only be through a complaint
filed in conformity with Section 60 of the DM Act1 or Section 195 of the
Code, in our view, the provisions of the DM Act1 or Section 188 of the
IPC3 are not attracted at all.
53. Consequently, we accept the first prayer made by the petitioner
in this Writ Petition and quash FIR No.0053 dated 6.5.2020 registered at
Police Station Kumarsain, District Shimla, Himachal Pradesh and any
proceedings arising therefrom. We must however clarify that the issues
concerning ownership of HW News which had aired the talk show or
the nature and effect of violation, if any, of the Norms of Journalistic
conduct framed by the Press Council of India, have not been gone into
by us as they do not strictly are of any concern for determining first
prayer made in the writ petition.
54. We now come to the second prayer made in the
writ petition,
in support of which reliance was placed by the petitioner on the decisions
of this Court in Jacob Mathew4 and Lalita Kumari5.  In Jacob
Mathew4, a Bench of three Judges of this Court issued certain guidelines
with respect to the prosecution of medical professionals.
“Guidelines — Re: prosecuting medical professionals
50. As we have noticed hereinabove that the cases of doctors
(surgeons and physicians) being subjected to criminal prosecution
are on an increase. Sometimes such prosecutions are filed by
private complainants and sometimes by the police on an FIR being
lodged and cognizance taken. The investigating officer and the
private complainant cannot always be supposed to have knowledge
of medical science so as to determine whether the act of the
accused medical professional amounts to a rash or negligent act
within the domain of criminal law under Section 304-A IPC. The
VINOD DUA v. UNION OF INDIA & Ors.
[UDAY UMESH LALIT, J.]
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criminal process once initiated subjects the medical professional
to serious embarrassment and sometimes harassment. He has to
seek bail to escape arrest, which may or may not be granted to
him. At the end he may be exonerated by acquittal or discharge
but the loss which he has suffered to his reputation cannot be
compensated by any standards.
51. We may not be understood as holding that doctors can never
be prosecuted for an offence of which rashness or negligence is
an essential ingredient. All that we are doing is to emphasise the
need for care and caution in the interest of society; for, the service
which the medical profession renders to human beings is probably
the noblest of all, and hence there is a need for protecting doctors
from frivolous or unjust prosecutions. Many a complainant prefer
recourse to criminal process as a tool for pressurising the medical
professional for extracting uncalled for or unjust compensation.
Such malicious proceedings have to be guarded against.
52. Statutory rules or executive instructions incorporating certain
guidelines need to be framed and issued by the Government of
India and/or the State Governments in consultation with the
Medical Council of India. So long as it is not done, we propose to
lay down certain guidelines for the future which should govern
the prosecution of doctors for offences of which criminal rashness
or criminal negligence is an ingredient. A private
complaint may
not be entertained unless the complainant has produced prima
facie evidence before the court in the form of a credible opinion
given by another competent doctor to support the charge of
rashness or negligence on the part of the accused doctor. The
investigating officer should, before proceeding against the doctor
accused of rash or negligent act or omission, obtain an independent
and competent medical opinion preferably from a doctor in
government service, qualified in that branch of medical practice
who can normally be expected to give an impartial and unbiased
opinion applying the Bolam67 test to the facts collected in the
investigation. A doctor accused of rashness or negligence, may
not be arrested in a routine manner (simply because a charge has
been levelled against him). Unless his arrest is necessary for
67 Balam vs. Friern Hospital Management Committee: (1957) 1 WLR 582 : (1957) 2 All
ER 118 (QBD)
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furthering the investigation or for collecting evidence or unless
the investigating officer feels satisfied that the doctor proceeded
against would not make himself available to face the prosecution
unless arrested, the arrest may be withheld.”
(Emphasis supplied)
55. Before issuing the aforesaid guidelines, this Court considered
the illustrations mentioned below Sections 88, 92 and 93 of the IPC3 and
some relevant decisions,  whereafter conclusions were summed up as
under:-
“Conclusions summed up
48. We sum up our conclusions as under:
(1) Negligence is the breach of a duty caused by omission to do
something which a reasonable man guided by those considerations
which ordinarily regulate the conduct of human affairs would do,
or doing something which a prudent and reasonable man would
not do. The definition of negligence as given in Law of Torts,
Ratanlal & Dhirajlal (edited by Justice G.P. Singh), referred to
hereinabove, holds good. Negligence becomes actionable on
account of injury resulting from the act or omission amounting to
negligence attributable to the person sued. The essential
components of negligence are three: “duty”, “breach” and
“resulting damage”.
(2) Negligence in the context of the medical profession necessarily
calls for a treatment with a difference. To infer rashness or
negligence on the part of a professional, in particular a doctor,
additional considerations apply. A case of occupational negligence
is different from one of
professional negligence. A simple lack of
care, an error of judgment or an accident, is not proof of negligence
on the part of a medical professional. So long as a doctor follows
a practice acceptable to the medical profession of that day, he
cannot be held liable for negligence merely because a better
alternative course or method of treatment was also available or
simply because a more skilled doctor would not have chosen to
follow or resort to that practice or procedure which the accused
followed. When it comes to the failure of taking precautions, what
has to be seen is whether those precautions were taken which
VINOD DUA v. UNION OF INDIA & Ors.
[UDAY UMESH LALIT, J.]
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the ordinary experience of men has found to be sufficient; a failure
to use special or extraordinary precautions which might have
prevented the particular happening cannot be the standard for
judging the alleged negligence. So also, the standard of care, while
assessing the practice as adopted, is judged in the light of
knowledge available at the time of the incident, and not at the
date of trial. Similarly, when the charge of negligence arises out
of failure to use some particular equipment, the charge would fail
if the equipment was not generally available at that particular time
(that is, the time of the incident) at which it is suggested it should
have been used.
(3) A professional may be held liable for negligence on one of the
two findings: either he was not possessed of the requisite skill
which he professed to have possessed, or, he did not exercise,
with reasonable competence in the given case, the skill which he
did possess. The standard to be applied for judging, whether the
person charged has been negligent or not, would be that of an
ordinary competent person exercising ordinary skill in that
profession. It is not possible for every professional to possess the
highest level of expertise or skills in that branch which he practices.
A highly skilled professional may be possessed of better qualities,
but that cannot be made the basis or the yardstick for judging the
performance of the professional
proceeded against on indictment
of negligence.
(4) The test for determining medical negligence as laid down
in Bolam case67 holds good in its applicability in India.
(5) The jurisprudential concept of negligence differs in civil and
criminal law. What may be negligence in civil law may not
necessarily be negligence in criminal law. For negligence to amount
to an offence, the element of mens rea must be shown to exist.
For an act to amount to criminal negligence, the degree of
negligence should be much higher i.e. gross or of a very high
degree. Negligence which is neither gross nor of a higher degree
may provide a ground for action in civil law but cannot form the
basis for prosecution.
(6) The word “gross” has not been used in Section 304-A IPC,
yet it is settled that in criminal law negligence or recklessness, to
be so held, must be of such a high degree as to be “gross”. The
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expression “rash or negligent act” as occurring in Section 304-A
IPC has to be read as qualified by the word “grossly”.
(7) To prosecute a medical professional for negligence under
criminal law it must be shown that the accused did something or
failed to do something which in the given facts and circumstances
no medical professional in his ordinary senses and prudence would
have done or failed to do. The hazard taken by the accused doctor
should be of such a nature that the injury which resulted was
most likely imminent.”
56. Bolam’s67 case referred to in conclusion (4) was dealt with in
paragraph 20 of the decision as follows:-
“20. The water of Bolam67 test has ever since flown and passed
under several bridges, having been cited and dealt with in several
judicial pronouncements, one after the other and has continued to
be well received by every shore it has touched as neat, clean and
a well-condensed one. After a review of various authorities
Bingham, L.J. in his speech in Eckersley v. Binnie68  test in the
following words: (Con LR p. 79)
“From these general statements it follows that a
professional man should command the corpus of knowledge
which forms part of the professional equipment of the ordinary
member of his profession. He should not lag behind other
ordinary assiduous and intelligent members of his profession in
the knowledge of new advances, discoveries and developments
in his field. He should have such an awareness as an ordinarily
competent practitioner would have of the deficiencies in his
knowledge and the limitations on his skill. He should be alert to
the hazards and risks in any professional task he undertakes to
the extent that other ordinarily competent members of the
profession would be alert. He must bring to any professional
task he undertakes no less expertise, skill and care than other
ordinarily competent members of his profession would bring,
but need bring no more. The standard is that of the reasonable
average. The law does not require of a professional man that
he be a paragon combining the qualities of polymath and
prophet.” (Charlesworth & Percy, ibid., para 8.04)”
68 (1988) 18 Con LR 1
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57. What the decision makes clear is that before a medical
professional is prosecuted for negligence in criminal law, some threshold
requirements ought to be satisfied, otherwise an unwarranted prosecution
may not only result in great prejudice to the concerned medical
professional but would also not instill a sense of confidence in the medical
professionals for discharging their duties.  Considering Section 88 of the
IPC3 falling in Chapter titled “General Exceptions” and various illustrations
as stated above, adequate protection was found necessary to be extended
to medical professionals, whereafter aforestated guidelines were issued
by this Court.
58. The Constitution Bench of this Court in Lalita Kumari’s5
was called upon to consider, inter alia, the effect of Section 154 of the
IPC3.  One of the questions dealt with by the Constitution Bench was
whether the police would be required to make any preliminary inquiry
before registration of an FIR.  Taking note of the decision of this Court
in Jacob Mathew4, this Court in Lalita Kumari’s5 case observed:
“Exceptions
115. Although, we, in unequivocal terms, hold that Section 154 of
the Code postulates the mandatory registration of FIRs on receipt
of all cognizable offences, yet, there may be instances where
preliminary inquiry may be required owing to the change in genesis
and novelty of crimes with the passage of time. One such instance
is in the case of allegations
relating to medical negligence on the
part of doctors. It will be unfair and inequitable to prosecute a
medical professional only on the basis of the allegations in the
complaint.
116. In the context of medical negligence cases, in Jacob
Mathew4 , it was held by this Court as under : (SCC p. 35, paras
51-52)
“51. We may not be understood as holding that doctors can
never be prosecuted for an offence of which rashness or
negligence is an essential ingredient. All that we are doing is to
emphasise the need for care and caution in the interest of
society; for, the service which the medical profession renders
to human beings is probably the noblest of all, and hence there
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is a need for protecting doctors from frivolous or unjust
prosecutions. Many a complainant prefer recourse to criminal
process as a tool for pressurising the medical professional for
extracting uncalled for or unjust compensation. Such malicious
proceedings have to be guarded against.
52. Statutory rules or executive instructions incorporating
certain guidelines need to be framed and issued by the
Government of India and/or the State Governments in
consultation with the Medical Council of India. So long as it is
not done, we propose to lay down certain guidelines for the
future which should govern the prosecution of doctors for
offences of which criminal rashness or criminal negligence is
an ingredient. A private complaint may not be entertained unless
the complainant has produced prima facie evidence before the
court in the form of a credible opinion given by another
competent doctor to support the charge of rashness or
negligence on the part of the accused doctor. The investigating
officer should, before proceeding against the doctor accused
of rash or negligent act or omission, obtain an independent and
competent medical opinion preferably from a doctor in
government service, qualified in that branch of medical practice
who can normally be expected to give an impartial and unbiased
opinion applying the Bolam67 test to the facts collected in the
investigation. A doctor accused of rashness or negligence, may
not be arrested in a routine manner (simply
because a charge
has been levelled against him). Unless his arrest is necessary
for furthering the investigation or for collecting evidence or
unless the investigating officer feels satisfied that the doctor
proceeded against would not make himself available to face
the prosecution unless arrested, the arrest may be withheld.”
117. In the context of offences relating to corruption, this Court
in P. Sirajuddin v. State of Madras69, expressed the need for
a preliminary inquiry before proceeding against public servants.
118. Similarly, in CBI v. Tapan Kumar Singh70, this Court has
validated a preliminary inquiry prior to registering an FIR only
69 (1970) 1 SCC 595 : 1970 SCC (Cri) 240
70 (2003) 6 SCC 175 : 2003 SCC (Cri) 1305
VINOD DUA v. UNION OF INDIA & Ors.
[UDAY UMESH LALIT, J.]