PATRICIA MUKHIM versus STATE OF MEGHALAYA & ORS.
[2021] 7 S.C.R. 65, Supreme Court of India, 2021
Outcome: Appeal(s) allowed (Granted)
Segment: Ratio
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PATRICIA MUKHIM
v.
STATE OF MEGHALAYA & ORS.
(Criminal Appeal No. 141 of 2021)
MARCH 25, 2021
[L. NAGESWARA RAO AND S. RAVINDRA BHAT, JJ.]
Penal Code, 1860 – ss.153A and 505(1)(c) – Brutal attack
on non-tribals in State of Meghalaya with iron rods and sticks –
Attackers allegedly belonged to tribal community of Meghalaya –
Facebook post uploaded by Appellant, alleged to be intentionally
made for promoting class / community hatred between tribals and
non-tribals in the State – Prima facie case made out u/ss.153A and
505(1)(c) or not – Held: Close scrutiny of the Facebook post
uploaded by appellant indicate that her agony was directed against
the apathy shown by the CM, Meghalaya, DGP and the
DorbarShnong of the area in not taking any action against the
culprits who attacked the non-tribals – The Facebook post read in
its entirety pleads for equality of non-tribals in the State of
Meghalaya – There was no intention on the part of the Appellant to
promote class / community hatred – As no attempt was made by the
Appellant to incite people belonging to a community to indulge in
any violence, the basic ingredients of offence u/ss.153A and
505(1)(c) not made out – Fervent plea made by Appellant for
protection of non-tribals living in the State of Meghalaya and for
their equality cannot, by any stretch of imagination, be categorized
as hate speech – It was a call for justice - for action according to
law, which every citizen has a right to expect and articulate –
Disapprobation of governmental inaction cannot be branded as an
attempt to promote hatred between different communities – Free
speech of the citizens cannot be stifled by implicating them in criminal
cases, unless such speech has the tendency to affect public order –
No case made out against Appellant for offences u/ss.153A and
505(1)(c).
Penal Code, 1860 – s.153A – Speech crime – Restrictions on
freedom of speech and expression – Held: Freedom of speech and
expression guaranteed by Art.19(1)(a) of the Constitution is a very
[2021] 7 S.C.R. 65
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valuable fundamental right – However, the right is not absolute –
Reasonable restrictions can be placed on the right of free speech and
expression in the interest of sovereignty and integrity of India,
security of the State, friendly relations with foreign States, public
order, decency or morality or in relation to contempt of Court,
defamation or incitement to an offence –  Speech crime is punishable
u/s.153A – Constitution of India, 1950 – Art.19(1)(a) – Hate Speech.
Penal Code, 1860 – s.153A – Ambit of – Explained – Held:
The intention to cause disorder or incite people to violence is sine
qua non of the offence u/s. 153A and the prosecution has to prove
the existence of mens rea in order to succeed – Intention has to be
judged primarily by the language of the piece of writing and the
circumstances in which it was written and published – However, the
matter complained of within the ambit of s.153A must be read as a
whole.
Penal Code, 1860 – ss.153A & 505 – Ingredients of s.153A
vis-a-vis that of s.505(2) – Similarities and difference between the
two offences – Held: Mens rea is a necessary ingredient for offence
u/s.153A and s.505(2) – Common factor of both the sections being
promotion of feelings of enmity, hatred or ill will between different
religious or racial or linguistics or religious groups or castes or
communities, it is necessary that at least two such groups or
communities should be involved – Merely
inciting the feelings of
one community or group without any reference to any other
community or group cannot attract any of the two sections –
However, publication of words or representation is sine qua non u/
s.505 – Hate Speech.
FIR – Quashing of – Held: 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
quashed.
Allowing the appeal, the Court
HELD : 1.1. Freedom of speech and expression guaranteed
by Article 19(1)(a) of the Constitution is a very valuable
fundamental right. However, the right is not absolute. Reasonable
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restrictions can be placed on the right of free speech and
expression in the interest of sovereignty and integrity of India,
security of the State, friendly relations with foreign States, public
order, decency or morality or in relation to contempt of Court,
defamation or incitement to an offence. Speech crime is
punishable under s.153A IPC. [Para 8][72-C-D]
1.2. However, the intention to cause disorder or incite
people to violence is the sine qua non of the offence under s.
153A IPC and the prosecution has to prove the existence of mens
rea in order to succeed. The gist of the offence under s. 153A
IPC is the intention to promote feelings of enmity or hatred
between different classes of people. Intention has to be judged
primarily by the language of the piece of writing and the
circumstances in which it was written and published. The matter
complained of within the ambit of s.153A 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. [Paras 9, 10][73-H; 74-A-C]
1.3. Mens rea has been held to be a necessary ingredient
for the offence under s.153A and s.505(2) IPC. The common factor
of both the sections being promotion of feelings of enmity, hatred
or ill will between different religious or racial or linguistics or
religious groups or castes or communities, it is necessary that at
least two such groups or communities should be involved. Merely
inciting the feelings of one community or group without any
reference to any other community or group cannot attract any of
the two sections. However, publication of words or representation
is sine qua non under Section 505. [Para 11][74-D-F]
2. A close scrutiny of the Facebook post uploaded by the
Appellant would indicate that the agony of the Appellant was directed
against the apathy shown by the CM, Meghalaya, DGP and the
DorbarShnong of the area in not taking any action against the
culprits who attacked the non-tribals. At the most, the Facebook
post can be understood to highlight the discrimination against non-
tribals in the State of Meghalaya. The Appellant made it clear that
PATRICIA MUKHIM v. STATE OF MEGHALAYA & ORS.
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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. 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 153A and 505(1)(c) IPC 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 quashed. [Para 13][75-E-H;
76-A-B]
3. The complaint made by the Dorbar Shnong, Lawsohtun
that the statement of the Appellant would incite communal tension
and might instigate a communal conflict in the entire State is only a
figment of imagination. The fervent plea made by the Appellant for
protection of non-tribals living in the State of Meghalaya and for
their equality cannot, by any stretch of imagination, be categorized
as hate speech. It was a call for justice - for action according to law,
which every citizen has a right to expect and articulate.
Disapprobation of governmental inaction cannot be branded as an
attempt to
promote hatred between different communities. Free
speech of the citizens of this country cannot be stifled by implicating
them in criminal cases, unless such speech has the tendency to affect
public order. No case is made out against the Appellant for an offence
under Section 153 A and 505(1)(c) IPC. [Para 15][76-E-H; 77-A]
Balwant Singh v. State of Punjab, (1995) 3 SCC 214;
Manzar Sayeed Khan v. State of Maharashtra, (2007) 5
SCC 1; Bilal Ahmed Kaloo v. State of A.P.(1997) 7 SCC
431: [1997] 3 Suppl. SCR  327 and State of Haryana &
Ors. v. Bhajan Lal & Ors., 1992 Supp (1) SCC 335: [1990]
3 Suppl.  SCR 259 – relied on.
Ramesh v. Union of India (1988) 1 SCC 668: [1988] 2
SCR 1011; and Pravasi Bhalai Sangathan v. Union of India
& Ors. (2014) 11 SCC 477: [2014] 4 SCR 446 –
referred to.
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Saskatchewan (Human Rights Commission) v. Whatcott
[2013] 1 SCR 467 (Decision of Canadian Supreme Court)
– referred to.
Case Law Reference
(1995) 3 SCC 214
relied on
Para 9
(2007) 5 SCC 1
relied on
Para 10
[1997] 3 Suppl. SCR 327
relied on
Para 11
[1988] 2 SCR 1011
referred to
Para 11
[2014] 4 SCR 446
referred to
Para 12
[1990] 3 Suppl. SCR 259
relied on
Para 13
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 141 of 2021
From the Judgment and Order dated 10.11.2020 passed in Crl.
Petn. No. 9 of 2020 of the High Court of Meghalaya at Shillong.
Ms. Vrinda Grover, Aakarsh Kamra, Soutik Banerjee, Prasanna
S., Advs. for the Appellant.
Avijit Mani Tripathi, Shaurya Sahay, P.S. Negi, Advs. for the
Respondents.
The Judgment of the Court was delivered by
L. NAGESWARA RAO, J.
1. This Appeal is filed against the rejection of an application filed
by the Appellant under Section 482 of the Code of Criminal Procedure,
1973 for quashing FIR Laban PS Case No.72(7)2020 dated 06.07.2020
registered under Sections 153 A, 500 and 505 (1) (c) of the Indian Penal
Code, 1860.
2. A press release was issued by the Assistant Inspector General
of Police (A) on 04.07.2020 in which there was a reference to an incident
on the day prior. The incident had led to registration of a crime at Laban
Police Station under Sections 326/307/506/34 IPC. It was mentioned in
the press release that around 12:30 pm, about 25 unidentified boys had
assaulted youngsters playing basketball in Block 4,
Lawsohtun with iron
rods and sticks. Arindam Deb, Subharashi Das Paspurkayastha, Saptarshi
PATRICIA MUKHIM v. STATE OF MEGHALAYA & ORS.
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Das Purkayashta, Binak Deb, Bishal Ghosh and Prittish Deb had
sustained injuries in the incident. The injured had been rushed to Woodland
Hospital for medical assistance. It was stated in the press release that
some suspects had already been arrested and that interrogation was in
progress. An appeal was made to the public to assist the investigation
team in identifying the perpetrators of the crime. A warning was given
that nobody should breach communal peace and harmony.
3. On the same day, the Appellant uploaded a post on Facebook,
which reads as follows:
Patricia Mukhim
4 July at 04:07. Facebook for Android
Conrad Sangma CM Meghalaya, what happened yesterday
at Lawsohtun where some Non-Tribal youth playing Basketball
were assaulted with lethal weapons and are now in Hospital,
is unacceptable in a state with a Government and a functional
Police Force. The attackers allegedly tribal boys with masks
on and should be immediately booked. This continued attack
of Non-Tribals in Meghalaya whose ancestors have lived here
for decades, some having come here since the British period
is reprehensible to say the least. The fact that such attacker
and trouble mongers since 1979 have never been arrested
and if arrested never penalized according to law suggests
that Meghalaya has been a failed State for a long time now.
We request your government and the police force under the
present DGP, R. Chandranathan, to take this matter with
the
seriousness it deserves. Show us the public that we have a
police force we can look up to.
And what about the Dorbar Shnong of the area? Don’t they
have their eyes and ears to the ground? Don’t they know the
criminal elements in their jurisdiction? Should they not lead
the charge and identify those murderous elements? This is the
time to rise above community interests, caste and creed and
call out for justice.
We hope that this will not be yet another case lost in the Police
files. We want action. Criminal elements have no community.
They must be dealt with as per the law of the land.
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Why should our Non-Tribal brethren continue to live in
perpetual fear in their own state? Those born and brought
up here have as much right to call Meghalaya their State as
the indigenous Tribal does. Period.
4. On 06.07.2020, the Headman and the Secretary, Dorbar Shnong,
Lawsohtun, Shillong filed a complaint with the Superintendent of Police,
East Khasi Hills, Shillong, Meghalaya that the statement made by the
Appellant on Facebook incited communal tension which might instigate
a communal conflict. The Dorbar Shnong also complained of defamation.
Acting on the said complaint, FIR was registered at Laban Police Station
and notice was issued to the Appellant under Section 41 A Cr. PC, directing
her to appear before the Kench’s Trace Police Beat House under Laban
Police Station, District East Khasi Hills Shillong, Meghalaya.
5. The Appellant filed Criminal Petition No. 9 of 2020 in the High
Court of Meghalaya at Shillong for quashing the FIR. The High Court by
its judgment dated 10.11.2020 dismissed the Criminal Petition No. 9 of
2020, the legality of which is challenged in this Appeal. The High Court
was of the opinion that reference to the attack on the non-tribals in the
State of Meghalaya by the tribals has propensity to cause a rift between
two communities. Observing that the Facebook post sought to arouse
feelings of enmity and hatred between two communities, the High Court
held prima facie an offence under Section 153 A IPC was made out.
6. We have
heard Ms. Vrinda Grover, learned counsel for the
Appellant and Mr. Avijit Mani Tripathi, learned counsel for the State of
Meghalaya. The contention of the Appellant was that ingredients of the
offence under Section 153 A IPC have not been made out and the FIR
registered against the Appellant deserves to be quashed. It was urged on
behalf of the Appellant that the Facebook post should be read in its
entirety. The brutal attack on non-tribals was highlighted calling for suitable
action against the culprits. It was submitted on behalf of the Appellant
that there was no intention to promote any feeling of enmity or hatred
between two communities. Reliance was placed on judgments of this
Court to argue that the comment made by the Appellant should be judged
from the stand point of a reasonable, strong minded and courageous
man. The Appellant asserted her right guaranteed under Article 19 (1) (a)
of the Constitution of India. She voiced her concern about the criminal
prosecution resulting in a chilling effect on her fundamental right to free
speech.
PATRICIA MUKHIM v. STATE OF MEGHALAYA & ORS.
[L. NAGESWARA RAO, J.]
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7. The learned counsel for the Respondent-State argued that the
Appellant is a renowned journalist and is expected to be more responsible
when making public comments. The learned counsel for the State
submitted that the comment of the Appellant has the tendency of provoking
communal disharmony.  He submitted that the High Court was right in
dismissing the application filed under Section 482 Cr. PC and requested
this Court to not interfere as the investigation is in progress.
8. “It is of utmost importance to keep all speech free in order
for the truth to emerge and have a civil society.” - Thomas Jefferson.
Freedom of speech and expression guaranteed by Article 19 (1) (a) of
the Constitution is a very valuable fundamental right. However, the right
is not absolute. Reasonable restrictions can be placed on the right of
free speech and expression in the interest of sovereignty and integrity of
India, security of the State, friendly relations with foreign States, public
order, decency or morality or in relation to contempt of Court, defamation
or incitement to an offence. Speech crime is punishable under Section
153 A IPC. Promotion of enmity between different groups on grounds
of religion, race, place of birth, residence, language etc. and doing acts
prejudicial to maintenance of harmony is punishable with imprisonment
which may extend to three years or with fine or with both under Section
153 A. As we are called upon to
decide whether a prima facie case is
made out against the Appellant for committing offences under Sections
153 A and 505 (1) (c), it is relevant to reproduce the provisions which
are as follows:
153A. Promoting enmity between different groups on
grounds of religion, race, place of birth, residence,
language, etc., and doing acts prejudicial to maintenance of
harmony. —
(1) Whoever—
(a) by words, either spoken or written, or by signs or by visible
representations or otherwise, promotes or attempts to promote,
on grounds of religion, race, place of birth, residence, language,
caste or community or any other ground whatsoever, disharmony
or feelings of enmity, hatred or ill-will between different reli-gious,
racial, language or regional groups or castes or communi-ties, or
(b) commits any act which is prejudicial to the maintenance of
harmony between different religious, racial, language or regional
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groups or castes or communities, and which disturbs or is likely to
disturb the public tranquility, or
(c) organizes any exercise, movement, drill or other similar activity
intending that the participants in such activity shall use or be trained
to use criminal force or violence or knowing it to be likely that the
participants in such activity will use or be trained to use criminal
force or violence, or participates in such activity intending to use
or be trained to use criminal force or violence or knowing it to be
likely that the partici-pants in such activity will use or be trained to
use criminal force or violence, against any religious, racial, language
or regional group or caste or community and such activity for any
reason whatsoever causes or is likely to cause fear or alarm or a
feeling of insecurity amongst members of such religious, racial,
language or regional group or caste or community, shall be punished
with imprisonment which may extend to three years, or with fine,
or with both.
Offence committed in place of worship, etc.— (2) Whoever
commits an offence specified in sub-section (1) in any place of
worship or in any assembly engaged in the performance of religious
wor-ship or religious ceremonies, shall be punished with
imprisonment which may extend to five years and shall also be
liable to fine.
505. Statements conducing to public mischief. —
(1) Whoever makes, publishes or circulates any statement, rumour
or report, —
***
***
***
***
(c)
with intent to incite, or which is likely to incite, any class or
community of persons to commit any offence against any other
class or community,
shall be punished with imprisonment which may extend to three
years, or with fine, or with both.
9. Only where the written or spoken words have the tendency of
creating public disorder or disturbance of law and order or affecting
public tranquility, the law needs to step in to prevent such an activity.
The intention to cause disorder or incite people to violence is the sine
PATRICIA MUKHIM v. STATE OF MEGHALAYA & ORS.
[L. NAGESWARA RAO, J.]
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qua non of the offence under Section 153 A IPC and the prosecution
has to prove the existence of mens rea in order to succeed.1
10. The gist of the offence under Section 153 A IPC is the intention
to promote feelings of enmity or hatred between different classes of
people. The intention has to be judged primarily by the language of the
piece of writing and the circumstances in which it was written and
published. The matter complained of within the ambit of Section 153A
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 reasoning2.
11. In Bilal Ahmed Kaloo v. State of A.P.3, this Court analysed
the ingredients of Sections 153 A and 505 (2) IPC. It was held that
Section 153 A covers a case where a person by “words, either spoken
or written, or by signs or by visible representations”, promotes or attempts
to promote feeling of enmity, hatred or ill will. Under Section 505 (2)
promotion of such feeling should have been done by making a publication
or circulating any statement or report containing rumour or alarming
news. Mens rea was held to be a necessary ingredient for the offence
under Section 153 A and Section 505 (2). The common factor of both
the sections being promotion of feelings of enmity, hatred or ill will between
different religious or racial
or linguistics or religious groups or castes or
communities, it is necessary that at least two such groups or communities
should be involved. It was further held in Bilal Ahmed Kaloo (supra)
that merely inciting the feelings of one community or group without any
reference to any other community or group cannot attract any of the
two sections. The Court went on to highlight the distinction between the
two offences, holding that publication of words or representation is sine
qua non under Section 505. It is also relevant to refer to the judgment
of this Court in Ramesh v. Union of India4 in which it was held that
words used in the alleged criminal speech should be judged from the
standards of reasonable, strong-minded, firm and courageous men, and
not those of weak and vacillating minds, nor of those who scent danger
in every hostile point of view. The standard of an ordinary reasonable
1 Balwant Singh v. State of Punjab, (1995) 3 SCC 214
2 Manzar Sayeed Khan v. State of Maharashtra, (2007) 5 SCC 1
3 (1997) 7 SCC 431
4 (1988) 1 SCC 668
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man or as they say in English law “the man on the top of a Clapham
omnibus” should be applied.
12. This Court in Pravasi Bhalai Sangathan v. Union of India
& Ors.5 had referred to the Canadian Supreme Court decision in
Saskatchewan (Human Rights Commission) v. Whatcott6. In that
judgment, the Canadian Supreme Court set out what it considered to be
a workable approach in interpreting “hatred” as is used in legislative
provisions prohibiting hate speech. The first test was for the Courts to
apply the hate speech prohibition objectively and in so doing, ask whether
a reasonable person, aware of the context and circumstances, would
view the expression as exposing the protected group to hatred. The
second test was to restrict interpretation of the legislative term “hatred”
to those extreme manifestations of the emotion described by the words
“detestation” and “vilification”. This would filter out and protect speech
which might be repugnant and offensive, but does not incite the level of
abhorrence, delegitimization and rejection that risks causing discrimination
or injury. The third test was for Courts to focus their analysis on the
effect of the expression at issue, namely, whether it is likely to expose
the targeted person or group to hatred by others. Mere repugnancy of
the ideas expressed is insufficient to constitute the crime attracting penalty.
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 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 non-tribals in 1979. At the most, the
Facebook post can be understood to highlight the discrimination against
non-tribals 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
5 (2014) 11 SCC 477
6 [2013] 1 SCR 467
PATRICIA MUKHIM v. STATE OF MEGHALAYA & ORS.
[L. NAGESWARA RAO, J.]
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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 quashed7.
14. India is a plural and multicultural society. The promise of liberty,
enunciated in the Preamble, manifests itself in various provisions which
outline each citizen’s rights; they include the right to free speech, to
travel freely and settle (subject to such reasonable restrictions that may
be validly enacted) throughout the length and breadth of India. At times,
when in the legitimate exercise of such a right, individuals travel, settle
down or carry on a vocation in a place where they find conditions
conducive, there may be resentments, especially if such citizens prosper,
leading to hostility or possibly violence. In such instances, if the victims
voice their discontent, and speak out, especially if the state authorities
turn a blind eye, or drag their feet, such voicing of discontent is really a
cry for anguish, for justice denied – or delayed. This is exactly
what
appears to have happened in this case.
15. The attack upon six non-locals, carried out by masked
individuals, is not denied by the State; its reporting too is not denied. The
State in fact issued a press release. There appears to be no headway in
the investigations. The complaint made by the Dorbar Shnong, Lawsohtun
that the statement of the Appellant would incite communal tension and
might instigate a communal conflict in the entire State is only a figment
of imagination. The fervent plea made by the Appellant for protection of
non-tribals living in the State of Meghalaya and for their equality cannot,
by any stretch of imagination, be categorized as hate speech.  It was a
call for justice - for action according to law, which every citizen has a
right to expect and articulate. Disapprobation of governmental inaction
cannot be branded as an attempt to promote hatred between different
communities. Free speech of the citizens of this country cannot be stifled
by implicating them in criminal cases, unless such speech has the tendency
to affect public order.  The sequitur of above analysis of the Facebook
7 State of Haryana & Ors. v. Bhajan Lal & Ors., 1992 Supp (1)  SCC 335
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Bibhuti Bhushan Bose
Appeal allowed.
post made by the Appellant is that no case is made out against the
Appellant for an offence under Section 153 A and 505 (1) (c) IPC.
16. For the aforementioned reasons, the Appeal is allowed and
the judgment of the High Court is set aside. FIR PS Case No.72 (7)
2020 dated 06.07.2020 registered at Police Station Laban is quashed.
PATRICIA MUKHIM v. STATE OF MEGHALAYA & ORS.
[L. NAGESWARA RAO, J.]