Holding

The Court held that the FIRs are jurisdictionally valid, the hate‑speech elements of content, intent and harm must be examined before determining liability, and therefore the FIRs cannot be quashed; they are to be transferred to the Ajmer police station and the petitioner is protected from arrest pending investigation.

Summary

The petitioner, journalist Amish Devgan, hosted a televised debate on the Places of Worship (Special Provisions) Act and described the Sufi saint Pir Hazrat Moinuddin Chishti as an invader, terrorist and robber, leading to seven FIRs in different states under Sections 295A, 153A and 505(2) of the IPC. He sought quashing of the FIRs, or alternatively their transfer and clubbing with the first FIR lodged in Ajmer, and protection from any coercive action. The Supreme Court examined whether the FIRs fell within the jurisdiction of the police, the applicability of the hate‑speech provisions, and the relevance of the defence of trifle under Section 95. It held that the FIRs are jurisdictionally valid, that the three‑element test of content, intent and harm must be applied before deciding on hate speech, and that the petition cannot be entertained at this stage. Consequently, the Court declined to quash the FIRs, ordered their transfer to the Ajmer police station, granted interim protection against arrest pending investigation, and dismissed the writ.

Issues considered

The jurisdictional validity of multiple FIRs filed in different states for the same televised incident under Sections 179 and 156(1) of the CrPC
Whether the statements made by the petitioner constitute hate speech punishable under Sections 295A, 153A and 505(2) of the IPC
The applicability of the defence of trifle under Section 95 of the IPC
The propriety of quashing the FIRs under Article 32 of the Constitution
The appropriateness of transferring and clubbing the subsequent FIRs with the first FIR
The scope of interim relief to protect the petitioner from coercive action during investigation

Legislation cited

Cable TV (Regulation) Act
Code of Criminal Procedure, 1973s. Section 154, s. Section 156(1), s. Section 157, s. Section 158, s. Section 162, s. Section 173, s. Section 179, s. Section 186
Constitution of Indias. Article 19(1)(a), s. Article 19(2), s. Article 32
Indian Penal Code, 1860s. Section 153A, s. Section 295A, s. Section 505(2), s. Section 95
Information Technology Act, 2000s. Section 66F
Places of Worship (Special Provisions) Act, 1991

Subjects

hate speechfreedom of expressionArticle 19Section 295ASection 153ASection 505FIR jurisdictionpublic orderdignityconstitutional law

Judgment

198 [2020]
SUPREME COURT 14 S.C.R. 198
REPORTS [2020] 14 S.C.R.

A AMISH DEVGAN
v.
UNION OF INDIA AND OTHERS
(Writ Petition (Criminal) No. 160 of 2020)
B DECEMBER 07, 2020
[A. M. KHANWILKAR AND SANJIV KHANNA, JJ.]
Constitution of India – Arts. 19(1)(a), 19(2) and 32 – Penal
Code, 1860 – ss. 295A, 153A, 505(2) – Hate speech – The petitioner
hosted and anchored a debate on the Places of worship (Special
C
Provisions) Act, 1991 on a news channel – While hosting the debate,
the petitioner had described Pir Hazrat Moinuddin Chishti, as an
invader, terrorist and robber who had come to India to convert its
population to Islam – Post the telecast as many as seven FIRs
concerning the said episode were filed and registered against the
D petitioner in the States of Rajasthan, Telangana, Maharashtra and
Madhya Pradesh – It was alleged that petitioner had deliberately
and intentionally insulted a Pir or a pious saint belonging to the
Muslim community, revered even by Hindus, and thereby hurt and
incited religious hatred towards Muslims – The petitioner field writ
petition and sought (a) quashing of FIRs/ complaints; (b) in
E
alternative, transfer and club the FIRs mentioned with the First FIR,
i.e. FIR at Ajmer, Rajasthan; (c) direction that no coercive process
to be taken against the petitioner in the FIR and the Union of India
to provide him and his family adequate safety and security – In his
submissions, petitioner expressed regret and claimed that words were
F uttered inadvertently and by mistake – An interim order was passed
by the Supreme Court that stayed further steps/action on the FIRs
mentioned in the writ petition and petitioner was protected against
any coercive process arising out of or relating to the said FIRs –
Held: Three elements can be used to define and identify ‘hate speech’
namely- content-based element, intent-based element and harm-
G
based element – The content-based element involves open use of
words and phrases generally considered to be offensive to a
particular community and objectively offensive to the society – The
intent-based element of ‘hate speech’ requires the speaker’s message
to intend only to promote hatred, violence or resentment against a
H
198
AMISH DEVGAN v. UNION OF INDIA AND OTHERS 199

particular class or group without communicating any legitimate A
message – The harm or impact-based element refers to the
consequences of the ‘hate speech’ that is to harm victim which can
be violent or such as loss of self-esteem, economic or social
subordination – S.295A of the Penal Code encapsulates all three
elements, namely, it refers to the content-based element when it refers
B
to words either spoken or written or by signs or visible representation
– Similarly, sub-section 505 of the Penal Code refers to a person
publishing or circulating any statement or report containing rumour
or alarming news – In the instant case, the petitioner was equal co-
participant, rather than a mere host – The transcript, including the
offending portion, would form a part of the ‘content’, but any C
evaluation would require examination and consideration of the
variable ‘context’ as well as intent and the ‘harm/impact’ – These
have to evaluated before the Court can form an opinion on whether
an offence is made out – The petitioner also relies on his apology –
Thus, it is not an appropriate stage to quash FIR and stall the
D
investigation into all the relevant aspects – The interim protection
granted to the petitioner against arrest subject to his joining and
cooperating in investigation to continue – Further, prayer to transfer
all the FIRs to police station Dargah, Ajmer, Rajasthan accepted.
Code of Criminal Procedure, 1973 – s.156(1) and s.179 –
Conjoint reading of – Penal Code, 1860 – ss. 295A, 153A, 505(2) E
– Hate speech – Cause of Action – While hosting a debate show,
the petitioner had described Pir Hazrat Moinuddin Chishti, as an
invader, terrorist and robber who had come to India to convert its
population to Islam – Post the telecast as many as seven FIRs
concerning the said episode were filed and registered against the F
petitioner in the States of Rajasthan, Telangana, Maharashtra and
Madhya Pradesh – Petitioner contended that criminal proceedings
arising from the impugned FIRs ought to be quashed as these FIRs
were registered in places where no ‘cause of action’ arose – Held:
s.179 of Cr.P.C. provides that an offence is triable at the place where
an act is done or its consequence ensues – The audience, including G
the complainants, were located in different parts of India and were
affected by the utterances of the petitioner – Further, clause (1) of
s.156 of Cr.P.C. provides that any officer in-charge of a police
station may investigate any cognizable case which a court having
H
200 SUPREME COURT REPORTS [2020] 14 S.C.R.

A jurisdiction over the local limits of such station would have the
power to inquire into or try – Thus, a conjoint reading of ss.179
and 156 (1) of the Cr.P.C. make it clear that the impugned FIRs do
not suffer from this jurisdictional defect.
Penal Code, 1860 – s. 95 – Act causing slight harm – While
B hosting a debate show, the petitioner had described Pir Hazrat
Moinuddin Chishti, as an invader, terrorist and robber who had
come to India to convert its population to Islam – The petitioner has
relied upon the decision of the Supreme Court in Veeda Menez and
the decision of the High Court of Delhi in Neelam Mahajan to plead
the defence of trifle u/s. 95 of the Penal Code – Held: The instant
C case cannot be equated with either Veeda Menez or Neelam
Mahajan’s case where the factual matrix was undisputed and admitted
– It would be wrong and inappropriate in the present context to
prejudge and pronounce on aspects which are factual and disputed
– The plea raised by the petitioner cannot be accepted without
D ascertaining facts and evidence.
Constitution of India – Arts. 19(1)(a), 19(2) and 32 – Hate
Speech – Constitutional and statutory treatment of ‘hate speech’
depends on the values sought to be promoted, perceived harm
involved and the importance of these harms – Consequently, a
E universal definition of ‘hate speech’ remains difficult, except for
one commonality that ‘incitement to violence’ is punishable.
International Law – Hate Speech – The American Framework
on hate speech is based on four major philosophical justifications;
Justification from democracy, Social contract theory, Pursuit of the
F truth and Idea of autonomy – The Canadian approach emphasises
on multiculturalism and group equality, as it places greater emphasis
on cultural diversity and promotes the idea of ethnic mosaic – The
Australian approach is substantially aligned with Canada – The
South African position regards dignity as paramount constitutional
value and the law and the courts are willing to subjugate freedom
G of expression when the latter sufficiently undermines the former –
The position in the United Kingdom has shifted over the years from
reinforcing the security of the government to checking incitement
to racial hatred among non-target audience with the aim of
protecting targets against racially motivated harassment – Germany
H believes that freedom of expression is one amongst several rights
AMISH DEVGAN v. UNION OF INDIA AND OTHERS 201

which is limited by principles of equality, dignity and multiculturalism A
– The French law gives primacy to freedom of expression, which it
believes is meaningless without the right to offend, which would to
some not only include the right to criticise and provoke but also the
right to ridicule when it comes to ideas and beliefs, including
religious beliefs.
B
Penal Code, 1860 – s.295A – Held: Import of s.295A of the
Penal Code, Ramji Lal Modi holds, is to curb speech made with
‘malicious intent’ and not ‘offensive speech’ – Criminality would
not include insults to religion offered unwittingly, carelessly or
without deliberate or malicious intent to outrage the religious feelings
– Only aggravated form of insult to religion when it is perpetuated C
with deliberate and malicious intent to outrage the religious feelings
of that group is punishable.
Constitution of India – Art. 19 – Penal Code, 1860 – s.153A
and s.505(2) – In Ramji Lal Modi and the later decision in Bilal
Ahmed Kaloo, which had examined ss.153A and 505(2) of the Penal D
Code, had primarily applied the ‘Bad Tendency test’ as propounded
by the American jurists – In Dr. Ram Manohar Lohia, referring to the
words ‘in the interest of… public order’ in clause (2) to Article 19
had observed that order is a basic need in any organised society –
It implies orderly state of society or community in which the citizens E
can peacefully pursue their normal activities of life .
Words and Phrases – ‘minor breaches’ and ‘security of State’
– discuss and defined.
Constitution of India – Art. 19 – ‘Dignity’ in the context of
hate speech – Held: Loss of dignity and selfworth of the targeted F
group members contributes to disharmony amongst groups, erodes
tolerance and open-mindedness which are a must for multi-cultural
society committed to the idea of equality – It affects an individual
as a member of a group – It is however necessary that at least two
groups or communities must be involved; merely referring to feelings G
of one community or group without any reference to any other
community or group does not attract the ‘hate speech’ definition.
Constitution of India – Art. 19 – Hate speech – Dignity of
individual and unity and integrity of the nation – Held: Dignity of
individual and unity and integrity of the nation are linked, one in
H
202 SUPREME COURT REPORTS [2020] 14 S.C.R.

A the form of rights of individuals and other in the form of individual’s
obligation to others to ensure unity and integrity of the nation –
The unity and integrity of the nation cannot be overlooked and
slighted, as the acts that ‘promote’ or are ‘likely’ to ‘promote’
divisiveness, alienation and schematism do directly and indirectly
impinge on the diversity and pluralism, and when they are with the
B
objective and intent to cause public disorder or to demean dignity
of the targeted groups, they have to be dealt with as per law – The
purpose is not to curtail right to expression and speech, albeit not
gloss over specific egregious threats to public disorder and in
particular the unity and integrity of the nation.
C Constitution of India – Art. 19 – Hate speech – Analysis and
definition of – Held: Three distinct elements that legislatures and
courts can use to define and identify ‘hate speech’, namely – content-
based element, intent-based element and harm-based element (or
impact-based element) – The content-based element involves open
D use of words and phrases generally considered to be offensive to a
particular community and objectively offensive to the society – The
intent-based element of ‘hate speech’ requires the speaker’s message
to intend only to promote hatred, violence or resentment against a
particular class or group without communicating any legitimate
message – The harm or impact-based element refers to the
E consequences of the ‘hate speech’ that is to harm victim which can
be violent or such as loss of self-esteem, economic or social
subordination.
Constitution of India – Art. 19 – Distinction between Free
speech and Hate speech – Held: A distinction between ‘free speech’
F which includes the right to comment, favour or criticise government
policies; and ‘hate speech’ creating or spreading hatred against a
targeted community or group – The former is primarily concerned
with political, social and economic issues and policy matters, the
latter would not primarily focus on the subject matter but on the
G substance of the message which is to cause humiliation and
alienation of the targeted group – The object of criminalising the
latter type of speech is to protect the dignity and to ensure political
and social equality between different identities and groups
regardless of caste, creed, religion, sex, gender identity, sexual

H
AMISH DEVGAN v. UNION OF INDIA AND OTHERS 203

orientation, linguistic preference etc.– Freedom to express and speak A
is the most important condition for political democracy.
Words and Phrases – ‘Tolerance’ – discuss and defined.
Penal Code, 1860 – s.153A – Held: Deliberate and malicious
intent is necessary and can be gathered from the words itself-
satisfying the test of top of Clapham omnibus, the who factor person B
making the comment, the targeted and non targeted group, the
context and occasion factor- the time and circumstances in which
the words or speech was made, the state of feeling between the two
communities, etc. and the proximate nexus with the protected harm
to cumulatively satiate the test of ‘hate speech’ – ‘Good faith’ and C
‘no legitimate purpose’ test would apply, as they are important in
considering the intent factor.
Penal Code, 1860 – s.153A (b) – Held: In the context of
s.153A(b), public tranquillity, given the nature of the consequence
in the form of punishment of imprisonment of up to three years, D
must be read in a restricted sense synonymous with public order
and safety and not normal law and order issues that do not endanger
the public – It cannot be given the widest meaning so as to fall foul
of the requirement of reasonableness which is a constitutional
mandate.
E
Words and Phrases – “Attempt’ in the context of hate speech
– Held: An ‘attempt to constitute a crime’, the impugned act should
be more than mere preparation and reasonably proximate to the
consummation of the offence, which has been interrupted – In the
context of ‘hate speech’, including the offences related to promoting
disharmony or feelings of enmity, hatred or ill-will, and insulting F
the religion or the religious beliefs, it would certainly require the
actual utterance of words or something more than thought which
would constitute the content.
Code of Criminal Procedure, 1973 – Quashing of FIR at an
early stage – The Supreme Court has at the initial stage quashed G
the proceedings arising out of the FIR, namely, Manzar Sayeed
Khan, Mahendra Singh Dhoni, Ramesh as well as Balwant Singh –
However, the ratio in Balwant Singh has to be applied with caution
as the decision had proceeded on failure of prosecution.
H
204 SUPREME COURT REPORTS [2020] 14 S.C.R.

A Code of Criminal Procedure, 1973 – First Information Report
(FIR) – Definition and meaning of – Held: Acronym FIR, or the
First Information Report, is neither defined in the Criminal Code
nor is used therein, albeit it refers to the information relating to the
commission of a cognisable offence – This information, if given
orally to an officer in-charge of the police station, is mandated to
B
be reduced in writing – Information to be recorded in writing need
not be necessarily by an eye-witness, and hence, cannot be rejected
merely because it is hearsay – S.154 does not mandate nor is this
requirement manifest from other provisions of the Criminal Code –
Lalita Kumari held that s.154 of the Criminal Code, in unequivocal
C terms, mandates registration of FIR on receipt of all cognisable
offences, subject to exceptions in which case a preliminary inquiry
is required – Tapan Kumar Singh held that the FIR is not an
encyclopaedia disclosing all facts and details relating to the offence.
Code of Criminal Procedure, 1973 – FIR – Quashing of –
D FIRs registered against the petitioner for describing Pir Hazrat
Moinuddin Chishti, as an invader, terrorist and robber who had
come to India to convert its population to Islam – Petitioner sought
quashing of FIRs – Held: The petitioner was an equal co-participant,
rather than a mere host – Three distinct elements that used to define
and identify ‘hate speech’, namely-content-based element, intent-
E based element and harm-based element (or impact-based element),
need to be evaluated before the Court – These have to be evaluated,
before the Court form an opinion on whether an offence is made
out – Thus, it would not be appropriate at this stage to quash FIRs
and stall the investigation into all the relevant aspects.
F Code of Criminal Procedure, 1973 – Multiple FIRs – In
Babubhai v. State of Gujarat and others wherein the test to determine
sameness of the FIRs has been elucidated as when the subject matter
of the FIRs is the same incident, same occurrence or are in regard
to incidents which are two or more parts of the same transaction –
G If the answer to the question is affirmative, then the second FIR
need not be proceeded with.
Words and Phrases – ‘ordre publique’, ‘public tranquillity’ and
‘public order’ – discussed.

H
AMISH DEVGAN v. UNION OF INDIA AND OTHERS 205

Disposing of the writ petition, the Court A
HELD: 1. The Section 295A of the Penal Code encapsulates
of all three elements, namely; content-based element, intent-
based element and harm-based element (or impact-based
element), it refers to the content-based element when it refers
to words either spoken or written, or by signs or visible B
representation or otherwise. It also refers to deliberate and
malicious intent on the part of the maker to outrage religious
feeling of any class of citizens of India. The last portion of the
said section refers to the harm-based element, that is, insult or
attempt to insult religions or religious belief of that class.
Similarly, subsection (2) to Section 505 refers to a person making C
publishing or circulating any statement or report containing
rumour or alarming news. Thereafter, it refers to the intent of
the person which should be to create or promote and then refers
to the harm-based element that is, feeling of enmity, hatred or ill-
will between different religions, religious groups or castes or D
communities, etc. [Para 65][275-E-G]
2. In Bilal Ahmad Kaloo, this Court had drawn a distinction
between sub-section (2) to Section 505 and clause (a) to Section
153A of the Penal Code observing that publication is not
necessary in the latter while it is sine qua non under clause (2) of E
Section 505. Clause (2) of Section 505 of the Penal Code cannot
be interpreted disjunctively and the words ‘whosoever makes,
publishes or circulates’ are supplemented to each other. The
intention of the legislature in providing two different sections of
the same subject vide single amending act would show that they
cover two different fields of same colour. [Para 66][275-H; F
276-A-B]
3. Clauses (a) and (b) to sub-section (1) to Section 153A of
the Penal Code use the words ‘promotes’ and ‘likely’ respectively.
Similarly, Section 295-A uses the word ‘attempts’ and sub-section
(2) to Section 505 uses the words ‘create or promote’. Word G
‘likely’ as explained, in opinion of this Court, convey the meaning,
that the chance of the event occurring should be real and not
fanciful or remote. Instigation must necessarily and specifically
be suggestive of the consequences. Sufficient certainty to incite
the consequences must be capable of being spelt out to be H
206 SUPREME COURT REPORTS [2020] 14 S.C.R.

A incitement. Further, it is for the prosecution to show and establish
that the standard has been breached by leading evidence, which
can be both oral and documentary. ‘Promote’ does not imply mere
describing and narrating a fact, or giving opinion criticising the
point of view or actions of another person – it requires that the
speaker should actively incite the audience to cause public
B
disorder. This active incitement can be gauged by the content of
the speech, the context and surrounding circumstances, and the
intent of the speaker. However, in case the speaker is merely
pointing out why a certain person or group is behaving in a
particular manner, what are their demands and their point of view,
C or when the speaker interviews such person or group, it would
be a passive delivery of facts and opinions which may not amount
to promotion. [Para 67][276-C-H; 277-A-B]
4. An attempt is short of actual causation of crime and more
than mere preparation. In the context of ‘hate speech’, including
D the offences related to promoting disharmony or feelings of
enmity, hatred or ill-will, and insulting the religion or the religious
beliefs, it would certainly require the actual utterance of words
or something more than thought which would constitute the
content. Without actual utterance etc. it would be mere thought,
and thoughts without overt act is not punishable. In the case of
E ‘publication’, again a mere thought would not be actionable, albeit
whether or not there is an attempt to ‘publish’ would depend on
facts. The impugned act should be more than mere preparation
and reasonably proximate to the consummation of the offence,
which has been interrupted. The question of intent would be
F relevant. On the question of the harm’s element, same test and
principle, as applicable in the case of ‘likely’ would apply, except
for the fact that for intervening reasons or grounds public disorder
or violence may not have taken place. [Para 68][277-G-H;
278-A-C]
G 5. Having interpreted the relevant provisions, this Court
is conscious of the fact that primacy has been given to the precept
of ‘interest of public order’ and by relying upon ‘imminent lawless
action’ principle, not given due weightage to the long-term impact
of ‘hate’ speech as a propaganda on both the targeted and non-
targeted groups. This is not to undermine the concept of dignity,
H
AMISH DEVGAN v. UNION OF INDIA AND OTHERS 207

which is the fundamental foundation on the basis of which the A
citizens must interact between themselves and with the State.
Further, a ‘hate speech’ meeting the criteria of ‘clear and present
danger’ or ‘imminent lawless action’ would necessarily have long-
term negative effect. Lastly, this Court is dealing with penal or
criminal action and, therefore, have to balance the right to express
B
and speak with retaliatory criminal proceedings. This Court is to
also prevent abuse and check misuse. It is not just penal threat
alone which can achieve and ensure equality between groups.
Dignity of citizens of all castes, creed, religion and region is best
protected by the fellow citizens belonging to non-targeted groups
and even targeted groups. [Para 69][278-C-H] C
6. Acronym FIR, or the First Information Report, is neither
defined in the Criminal Code nor is used therein, albeit it refers
to the information relating to the commission of a cognisable
offence. This information, if given orally to an officer in-charge of
the police station, is mandated to be reduced in writing. D
Information to be recorded in writing need not be necessarily by
an eye-witness, and hence, cannot be rejected merely because it
is hearsay. Section 154 does not mandate nor is this requirement
manifest from other provisions of the Criminal Code. Further,
FIR is not meant to be a detailed document containing chronicle
of all intricate and minute details. [Para 73][280-E-F] E

7. This Court respectfully agrees with the ratio laid down
in Arnab Ranjan Goswami. Ordinarily, this Court 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 F
maintainability and merits of the FIRs in question and, therefore,
been dealt with and rejected at this stage. [Para 77][284-F]
8. This Court has already reproduced relevant portions of
the transcript of the debate anchored by the petitioner. It is
apparent that the petitioner was an equal co-participant, rather G
than a mere host. The transcript, including the offending portion,
would form a part of the ‘content’, but any evaluation would
require examination and consideration of the variable ‘context’

H
208 SUPREME COURT REPORTS [2020] 14 S.C.R.

A as well as the ‘intent’ and the ‘harm/impact’. These have to be
evaluated before the court can form an opinion on whether an
offence is made out. The evaluative judgment on these aspects
would be based upon facts, which have to be inquired into and
ascertained by police investigation. The fact, that the petitioner
relies upon his apology, which as per the respondents/informants
B
is an indication or implied acceptance of his acts of commission.
[Para 78][284-G-H; 285-A-B]
9. It is not the appropriate at this stage to quash the FIRs
and thus stall the investigation into all the relevant aspects.
However, observations of this Court on the factual matrix of the
C present case in this decision should not in any manner influence
the investigation by the police who shall independently apply their
mind and ascertain the true and correct facts, on all material and
relevant aspects. Similarly, the competent authority would
independently apply its mind in case the police authorities seek
D sanction, and to decide, whether or not to grant the same. Same
would be the position in case charge-sheet is filed. The court
would apply its mind whether or not to take cognisance and issue
summons. By an interim order, the petitioner has enjoyed
protection against coercive steps arising out of and relating to
the program telecast on 15.06.2020. Subject to the petitioner
E cooperating in the investigation, this Court directs that no
coercive steps for arrest of the petitioner need be taken by the
police during investigation. In case and if charge-sheet is filed,
the court would examine the question of grant of bail without
being influenced by these directions as well as any findings of
F fact recorded in this judgment. [Para 79][285-C-F]
10. The decisions of this Court in Bhajan Lal, P.P. Sharma
and the earlier decision in R.P. Kapur which held that the High
Court, in exercise of inherent jurisdiction, can quash proceedings
in a proper case either to prevent abuse of process or otherwise
G to secure ends of justice. Application of the principles discussed
in these cases depends on factual matrix of each case. Strict and
restricted as the requirements are, they are at this stage not
satisfied in the present case. [Para 80][285-F; 286-B]

H
AMISH DEVGAN v. UNION OF INDIA AND OTHERS 209

11. The second prayer of the petitioner viz. multiplicity of A
FIRs being registered in the States of Rajasthan, Maharashtra,
Telangana, and Madhya Pradesh (now transferred to Uttar
Pradesh) relating to the same broadcast. Both the sides agreed
that the issue is covered by the decision of this Court in T.T.
Antony which has been followed in Arnab Ranjan Goswami’s case.
B
Also, in Babubhai v. State of Gujarat and Others wherein the test
to determine sameness of the FIRs has been elucidated as when
the subject matter of the FIRs is the same incident, same
occurrence or are in regard to incidents which are two or more
parts of the same transaction. If the answer to the question is
affirmative, then the second FIR need not be proceeded with. C
[Para 81][286-D; 290-B-C]
12. In the present case, this Court would like to follow the
ratio in T.T. Antony which is to the effect that the subsequent
FIRs would be treated as statements under Section 162 of the
Criminal Code. [Para 82][290-D-E] D
13. This Court would also like to clarify that Section 179 of
the Criminal Code permits prosecution of cases in the court within
whose local jurisdiction the offence has been committed or
consequences have ensued. Section 186 of the Criminal Code
relates to cases where two separate charge-sheets have been E
filed on the basis of separate FIRs and postulates that the
prosecution would proceed where the first charge-sheet has been
filed on the basis of the FIR that is first in point of time. Principle
underlying section 186 can be applied at the pre-charge-sheet
stage, that is, post registration of FIR but before charge-sheet is
submitted to the Magistrate. In such cases ordinarily the first F
FIR, that is, the FIR registered first in point of time, should be
treated as the main FIR and others as statements under Section
162 of the Criminal Code. However, in exceptional cases and for
good reasons, it will be open to the High Court or this Court, as
the case may be, to treat the subsequently registered FIR as the G
principal FIR. However, this should not cause any prejudice,
inconvenience or harassment to either the victims, witnesses or
the person who is accused. This Court has clarified the aforesaid

H
210 SUPREME COURT REPORTS [2020] 14 S.C.R.

A position to avoid any doubt or debate on the said aspect.
[Para 84][292-A-D]
14. In view of the findings, this Court accepts the prayer
made in the last amended writ petition and transfer all FIRs listed
to police station Dargah, Ajmer, Rajasthan, where the first FIR
B was registered. This Court does not find any good ground or
special reason to transfer the FIRs to Noida, Uttar Pradesh.
Statement of the complaint/informant forming the basis of the
transferred FIRs would be considered as statement under Section
162 of the Criminal Code and be proceeded with. [Para 85]
[292-E-F]
C
15. This Court declines and reject the prayer of the
petitioner for quashing of the FIRs but have granted interim
protection to the petitioner against arrest subject to his joining
and cooperating in investigation till completion of the
investigation. However, the prayer of the petitioner for transfer
D of all pending FIRs in relation to and arising out of the telecast/
episode to P.S. Dargah, Ajmer, where the first FIR was registered
is accepted. On the third prayer, this Court has asked the
concerned states to examine the threat perception of the
petitioner and family members and take appropriate steps as may
E be necessary. [Para 87][293-A-C]
Ramji Lal Modi v. State of U.P. AIR 1957 SC 620; Kedar
Nath Singh v. State of Bihar, (1970) 2 SCC 780 : [1971]
2 SCR 446; Madhu Limaye v. Sub-Divisional
Magistrate, Monghyr and Others,(1970) 3 SCC 746 :
F [1971] 2 SCR 711 – followed.
Shreya Singhal v. Union of India (2015) 5 SCC 1 :
[2015] 5 SCR 963; Anuradha Bhasin v. Union of India
and Others (2020) 3 SCC 637; Modern Dental College
and Research Centre and Others v. State of Madhya
G Pradesh and Others (2016) 7 SCC 353 : [2016] 3 SCR
579; Maneka Gandhi v. Union of India (1978) 1 SCC
248 : [1978] 2 SCR 621; State v. Mohd. Yakub (1980)
3 SCC 57; Lalita Kumari v. Government of Uttar
Pradesh and Others (2014) 2 SCC 1; State of H.P. v.
Pirthi Chand and Another, (1996) 2 SCC 37 : [1995] 6
H Suppl. SCR 29; Arnab Ranjan Goswami v. Union of
AMISH DEVGAN v. UNION OF INDIA AND OTHERS 211

India and Others (2020) SCC Online SC 462; T.T. A
Antony v. State of Kerala and Others, (2001) 6 SCC
181: [2001] 3 SCR 942 – relied on.
P.K. Chakravarty v. The King AIR 1926 Cal.1133 –
approved.
Her Majesty the Queen v. James Keegstra, (1990) 3 B
SCR 697; Balwant Singh and Another v. State of Punjab
(1995) 3 SCC 214 : [1995] 2 SCR 411; Bilal Ahmed
Kaloo v. State of A.P., (1997) 7 SCC 431 : [1997] 3
Supp. SCR 327; Brij Bhushan and Another v. State of
Delhi, AIR 1950 SC 129; Lalai Singh Yadav v. State of C
Uttar Pradesh, AIR 1962 SC 955; Mahendra Singh
Dhoni v. Yerraguntla Shyamsundar and Another, (2014)
2 SCC 1 : [2013] 14 SCR 713; Manzar Sayeed Khan
v. State of Maharashtra and Another, (2017) 7 SCC
760 : [2017] 3 SCR 763; Queen-Empress v. Bal
Gangadhar Tilak, (2014) 11 SCC 477 : [2014] 4 SCR D
446; Ramesh S/o Chhotalal Dalal v. Union of India and
Others, (1988) 1 SCC 668 : [1988] 2 SCR 1011;
Romesh Thappar v. State of Madras, AIR 1950 SC 12;
State of Bihar and Another v. P.P. Sharma, IAS and
Another, 1992 Supp. (1) SCC 222; State of Haryana v. E
Bhajan Lal, 1991 Supp (1) SCC 335; State of U.P. v.
O.P. Sharma, (1996) 7 SCC 705 : [1996] 2 SCR 236;
Superintendent of Police, CBI and Others v. Tapan
Kumar Singh, (2003) 6 SCC 175: [2003] 3 SCR 485;
Superintendent, Central Prison, Fatehgarh and Another
v. Dr. Ram Manohar Lohia, AIR 1960 SC 633; Virendra/ F
K.Narendra v. State of Punjab and Another AIR 1957
SC 896; State of Orissa v. Saroj Kumar Sahoo (2005)
13 SCC 540 : [2005] 5 Suppl. SCR 548; Chintaman
Rao v. State of Madhya Pradesh, AIR 1951 SC 118;
State of Madras v. V.G. Row, AIR 1952 SC 196; N.B. G
Khare (Dr.) v. State of Delhi AIR 1950 SC 211;
Mohammed Faruk v. State of Madhya Pradesh and
Others (1969) 1 SCC 853 : [1970] 1 SCR 156; Arun
Ghosh v. State of West Bengal (1970) 1 SCC 98 : [1979]
1 SCR 955; Justice K. S. Puttasamy v. Union of India
H
212 SUPREME COURT REPORTS [2020] 14 S.C.R.

A (2017) 10 SCC 1 : [2017] 10 SCR 569; Subramanian
Swamy v. Union of India and Others (2016) 7 SCC 221
: [2016] 3 SCR 865; Rustom Cowasjee Cooper v. Union
of India (1970) 2 SCC 298 : [1971] 1 SCR 512; Bennett
Coleman & Co. v. Union of India (1972) 2 SCC 788 :
[1973] 2 SCR 757; A.K. Gopalan v. State of Madras
B
AIR 1950 SC; Charu Khurana and Others v. Union of
India and Others (2015) 1 SCC; India Young Lawyers
Association and Others (Sabarimala Temple, In RE.) v.
State of Kerala and Others (2019) 11 SCC 1; Ram
Jethmalani and Others v. Union of India and Others
C (2011) 8 SCC 1 : [2011] 8 SCR 725; Noise Pollution
(V), In Re. (2005) 5 SCC 733 : [2005] 1 Suppl. SCR
624; Indira Sawhney v. Union of India, (1992) Supp. 3
SCC 217; Amita v. Union of India, (2005) 13 SCC 721;
Ebrahim Suleiman Sait v. M.Mohammed and Another
(1980) 1 SCC 398; Aman Kumar v. State of Haryana
D
(2004) 4 SCC 379; Dharma Rama Bhagare v. State of
Maharashtra,(1973) 1 SCC 537; Babubhai v. State of
Gujarat and Others, (2010) 12 SCC 254; Prakash
Kumar Alias Prakash Bhutto v. State of Gujarat, (2005)
2 SCC 409:[2005] 1 SCR 408 – referred to.
E Bhagwati Charan Shukla s/o. Ravishankar Shukla v.
Provincial Government, C.P. & Berar, AIR 1947 Nagpur
1; Devi Sharan Sharma v. Emperor, AIR 1927 Lah 594;
Emperor v. Sadashiv Narayan Bhalerao, AIR 1947 PC
82; Gopal Vinayak Godse v. Union of India, AIR 1971
F Bom 56; Pravasi Bhalai Sangathan v. Union of India
and Others, AIR 1926 Calcutta 1133; R. v. Zundel, 21
R. P. Kapur v. State of Punjab, ILR (1898) 22 Bombay
112; Veeda Menez v. Yusuf Khan and Another, 1966
SCR 123; Neelam Mahajan v. Commissioner of Police
and Others, 1993 (27) DRJ 357; Lalai Singh Yadav
G and Another v. State of Uttar Pradesh 1971 Cri LJ 1773
(FB) (Allahabad); P.K. Chakravarty v. The King, AIR
1926 Cal. 1133 – referred to.
Niharendu Dutt Majumdar v. The King-Emperor, 1942
FCR 38; K.A. Abbas v. Union of India and Another
H
AMISH DEVGAN v. UNION OF INDIA AND OTHERS 213

1942 FCR 38; Saskatchewan (Human Rights A
Commission) v. Whatcott, [2013] 1 SCR 467; Canada
(Human Rights Commission) v. Taylor, (1990) 3 SCR
892; Pat Eatock v. Andrew Bolt (2011) FCA 1103; Mr.
Justice Holmes in Schenek v. United States, 249 U.S.
47 (52); Brandenburg v. Ohio 395 U.S. 444 (1969);
B
Dennis v. United States 341 U.S. 494 O’Neill at (160)
– (161) and Hill v. Church of Scientology of Toronto,
(1995) 2 S.C.R. 1130 (117) and (120); Beauharnais v.
Illinois,343 U.S. 250 (1952); Tillmanns Butcheries Pty
Ltd. v. Australasian Meat Industry Employees’ Union
(1979) 27 ALR 380 – referred to. C
Hate Speech in Constitutional Jurisprudence: A
Comparative Analysis’ by Michel Rosenfeld, 24 Cordozo
L. Rev. 1523 2002-2003; ‘Hate Speech in
Constitutional Jurisprudence: A Comparative Analysis’
by Michel Rosenfeld, 24 Cordozo L. Rev. 1523 2002- D
2003; Andrew F. Sellers, Defining Hate Speech,
published by Berkman Klein Center for Internet &
Society at Harvard University; Words that Wound: A
tort Action for Racial Insults, Epithets, and Name-
Calling’, 17 Harv. C.R.- C.L.L.rev. 133 (1982);‘Public
Response to Racist Speech: Considering the Victim’s E
Story’, 87 Mich.L.Rev. 2320 (1989); Free Speech and
the Development of Liberal Virtues: An Examination of
the Controversies Involving Flag Burning and Hate
Speech’, 52 U.Miami K. Rev. 733 (1998); Hate Speech
in Constitutional Jurisprudence: A Comparative F
Analysis by Michel Rosenfeld, 24 Cardozo L. Rev. 1523
2002-2003; Myra Mrx Ferree, William A. Gamson,
Jurgen Gerhards and Dieter Rucht, ‘Four Models of
the Public Sphere in Modern Democracies,’ published
in THEORY AND SOCIETY, Vol. 31, No. 3 (June, 2002),
pp. 289-324;George Bernard Shaw, Socialism off G
Millionaires, 16(1901); Joseph Blocher, ‘Free Speech
and Justified True Belief ’, Harvard Law Review, Vol.
133, No.2, December 2019; Internet Encyclopaedia
of Philosophy, Toleration by Andrew Fiala, ISSN 2161-
0002; Marjoka Van Doorn, the Nature of Tolerance H
214 SUPREME COURT REPORTS [2020] 14 S.C.R.

A and the Social Circumstances in Which it
Emerges,Current Sociology Review, 2014, Vol. 62(6)
905-927; Sam Hariss, The End of Faith; Michael Sandel
Democracy’s Discontent (1998); John Rawls, Theory
of Justice (1971); The Wounded Vanity of Governments
in ‘Republic of Rhetoric: Free Speech and the
B
Constitution of India’ by Abhinav Chandrachud,
Penguin Books India (2017) – referred to.
Case Law Reference
1995(2) SCR 411 referred to Para 8
C [1997] 3 Supp. SCR 327 referred to Para 8
[1990] 3 SCR 697 referred to Para 8
[1971] 2 SCR 446 followed Para 8
[2013] 14 SCR 713 referred to Para 8
D
[2017] 3 SCR 763 referred to Para 8
[2014] 4 SCR 446 referred to Para 8
[1988] 2 SCR 1011 referred to Para 8
[2015] 5 SCR 963 relied on Para 8
E
[1995] 6 Suppl. SCR 29 relied on Para 8
[1996] 2 SCR 236 referred to Para 8
[2003] 3 SCR 485 referred to Para 8
[2001] 3 SCR 942 relied on Para 8
F
[2005] 5 Suppl. SCR 548 referred to Para 10
[1971] 2 SCR 711 followed Para 36
[1970] 1 SCR 156 referred to Para 38

G [1979] 1 SCR 955 referred to Para 39
[2016] 3 SCR 579 relied on Para 41
[2017] 10 SCR 569 referred to Para 41
[2016] 3 SCR 865 referred to Para 42
H [1978] 2 SCR 621 relied on Para 42
AMISH DEVGAN v. UNION OF INDIA AND OTHERS 215

[1971] 1 SCR 512 referred to Para 42 A
[1973] 2 SCR 757 referred to Para 42
[2005] 1 Suppl. SCR 624 referred to Para 43
CRIMINAL ORIGINAL JURISDICTION : Writ Petition
(Criminal) No. 160 Of 2020 B
(Under Article 32 of The Constitution of India)
Tushar Mehta, S.G., S.V. Raju, ASG, Vinod Diwakar, AAG, Sidharth
Luthra, Dr. Manish Singhvi, Sushil Kumar Jain, Sr. Advs., Vivek Jain,
Mrinal Bharti, Samarth Krishna Luthra, Ms. Suchitra Kumbhat, Ms.
Shubhangni Jain, Pankaj Singhal, Manish Shekari, Nitin Sharma, Ms. C
Pallavi Garg, Kanu Agrawal, B.V. Balram Das, Sachin Patil, Rahul
Chitnis, Geo Joseph, D. K. Devesh, Apurv Singhvi, S. Udaya Kumar
Sagar, Ms. Swati Bhardwaj, Sarvesh Singh Baghel, B.N. Dubey, Ms.
Shivranjani Ralawata, Puneet Jain, Harsh Jain, Harshit Khanduja, Ms.
Christi Jain, Aniruddh Joshi, Umang Shankar, Rizwan Merchant, S. D
Hariharan, Ms. Jaikriti S. Jadeja, Ms. Priya Puri, Shubail Farook, Faisal
Farook, Kshitij Kumar, Ranjay Dubey, Ibad Mustaq, Ms. Akanksha Rai,
Fuzail Ahmad Ayyubi, Ejaaz N. Shaikh, Vatsalya Vigya, Shakil Ahmed
Syed, Mohd. Parvez Dabas, Uzmi Jameel Husain, Daanish Ahmed Syed,
Prem Chandra, Rameshwar Prasad Goyal, Advs. for the appearing
parties. E
The Judgment of the Court was delivered by
SANJIV KHANNA, J.
1. Applications for intervention are allowed.
2. The writ petitioner, Amish Devgan, is a journalist who, it is F
stated, is presently the managing director of several news channels owned
and operated by TV18 Broadcast Limited, including News18 Uttar
Pradesh/Uttarakhand, News18 Madhya Pradesh/ Chhattisgarh and
News18 Rajasthan.
3. The petitioner hosts and anchors debate shows ‘Aar Paar’ on G
News18 India and ‘Takkar’ on CNBC Awaaz. On 15th June, 2020, at
around 7:30 p.m., the petitioner had hosted and anchored a debate on
the enactment1 which, while excluding Ayodhya, prohibits conversion
1
The Places of Worship (Special Provisions) Act, 1991.
H
216 SUPREME COURT REPORTS [2020] 14 S.C.R.

A and provides for maintenance of the religious character of places of
worship as it existed on 15 th August, 1947. Some Hindu priest
organisations had challenged vires of this Act before the Supreme Court,
and reportedly a Muslim organization had filed a petition opposing the
challenge.
B 4. Post the telecast as many as seven First Information Reports
(FIRs) concerning the episode were filed and registered against the
petitioner in the States of Rajasthan, Telangana, Maharashtra and Madhya
Pradesh. The details of the FIRs are as under:

C

D

E

F

G
The gist of the FIRs is almost identical. The petitioner, while hosting
the debate, had described Pir Hazrat Moinuddin Chishti, also known
as Pir Hazrat Khwaja Gareeb Nawaz, as “aakrantak Chishti aya...
aakrantak Chishti aya... lootera Chishti aya... uske baad dharam
badle”. Translated in English the words spoken would read – “Terrorist
H
AMISH DEVGAN v. UNION OF INDIA AND OTHERS 217
[SANJIV KHANNA, J.]

Chishti came. Terrorist Chishti came. Robber Chishti came - A
thereafter the religion changed,” imputing that ‘the Pir Hazrat
Moinuddin Chishti, a terrorist and robber, had by fear and intimidation
coerced Hindus to embrace Islam.’ It is alleged that the petitioner had
deliberately and intentionally insulted a Pir or a pious saint belonging to
the Muslim community, revered even by Hindus, and thereby hurt and
B
incited religious hatred towards Muslims.
5. The petitioner, as per the writ petition, claims that post the
telecast he was abused and given death threats on his phone, Twitter,
Facebook and other social media platforms. Fearing for his life and limb,
the petitioner had filed FIR No. 539 of 2020 dated 20th June, 2020 at
P.S. Sector-20, Noida, Uttar Pradesh, and submitted the links to the C
threats received through social media platforms.
6. On or about 22nd June, 2020, the present writ petition was filed
under Article 32 of the Constitution of India with an application for interim
relief. This writ petition came up for hearing on 26th June, 2020 whereby
notice was issued with a direction to the petitioner to implead the D
informants in the respective FIRs/complaints. An interim order was passed
directing that till the next date of hearing there would be a stay on further
steps/action on the FIRs mentioned in the writ petition, relating to the
telecast dated 15th June, 2020, and the petitioner was protected against
any coercive process arising out of or relating to the said FIRs. E
7. Pursuant to the aforesaid liberty, the writ petition was amended
to implead the complainants. Thereafter, the writ petition was amended
on a second occasion. The prayers made in the last amended writ petition
to this Court are:
(a) for issue of writ of certiorari, quashing the complaints/FIRs F
referred to above or any other FIR or criminal complaint
which may be filed thereafter relating to the telecast in
question dated 15th June, 2020;
(b) strictly in the alternative, transfer and club the FIRs
mentioned above or elsewhere in the country with the first G
FIR, i.e. FIR No. 78, P.S. Dargah, Ajmer, Rajasthan;
(c) issue a writ of mandamus to the effect that no coercive
process shall be taken against the petitioner in the FIRs so
lodged or subsequent complaint or FIRs on the subject
broadcast; and H
218 SUPREME COURT REPORTS [2020] 14 S.C.R.

A (d) direct the Union of India to provide adequate safety and
security to the petitioner, his family members and his
colleagues at various places in the country.”
8. The petitioner, in his submissions, claims that he has faith in
Banda Nawaz Hazrat Khwaja Moinuddin Chishti and has also gone
B on Ziyarat pilgrimage to Ajmer Sharif to offer respects and to worship.
Expressing regret, the petitioner claims that the attributed words were
uttered inadvertently and by mistake; in fact, the petitioner wanted to
refer to Alauddin Khilji and not Gareeb Nawaz Khwaja Moinuddin
Chishti. Realising his mistake and to amend the inadvertent error, and to
dispel doubts and vindicate himself, the petitioner had promptly issued a
C clarification and an apology vide a tweet dated 17th June 2020. A video
with similar clarification and apology was also telecast by the news
channel on the very same day. Contention of the petitioner is that in a
whirl, he had taken the name of Chishti though he had no such intention,
and he laments his lapse as he did not wish to hurt anybody. Accordingly,
D he had apologised to anyone who had been hurt. In addition, a number of
submissions have been made by the petitioner, which are summarised as
under:
• Multiple FIRs arising out of the same incident are abuse of
law, and violate fundamental rights of the petitioner and
E freedom of press, causing a chilling effect on the freedom
of speech and expression.
• The FIRs are meant to harass and intimidate the petitioner;
no part of ‘cause of action’ has arisen in the areas where
the FIRs were lodged.
F • On interpretation of Sections 153A, 295A, and 505(2) of
the Indian Penal Code, 1860 (in short, the ‘Penal Code’)
and Section 66-F of the Information Technology Act, 2000,
(in short, the ‘IT Act’), no offence whatsoever can be made
out; the allegations are based upon utterances in isolation
G by picking up select words and not on the programme as a
whole; the petitioner did not have any malicious intent and
mens rea to outrage religious beliefs and feelings; the
programme has to be judged from the standard of a
reasonable and strong-minded person and at best the words
exhibit carelessness without any deliberate and malicious
H
AMISH DEVGAN v. UNION OF INDIA AND OTHERS 219
[SANJIV KHANNA, J.]

intent, which fall outside the ambit of Sections 153A, 295A A
and 505(2) of the Penal Code.
• In the alternative, it is submitted that a case of trifle or
minor harm is made out, which would be covered by Section
95 of the Penal Code.
• Again, in the alternative, it is submitted that all the FIRs B
should be clubbed and transferred to Noida or Delhi.
Counsel for the petitioner has relied upon the following decisions
in support of his contention – Arnab Ranjan Goswami v. Union of
India and Others,2 Balwant Singh and Another v. State of Punjab,3
Bhagwati Charan Shukla s/o. Ravishankar Shukla v. Provincial C
Government, C.P. & Berar,4 Bilal Ahmed Kaloo v. State of A.P.,5
Brij Bhushan and Another v. State of Delhi,6 Devi Sharan Sharma
v. Emperor, 7 Emperor v. Sadashiv Narayan Bhalerao, 8 Gopal
Vinayak Godse v. Union of India,9 Her Majesty the Queen v. James
Keegstra,10 Niharendu Dutt Majumdar v. The King-Emperor,11 K.A. D
Abbas v. Union of India and Another,12 Kedar Nath Singh v. State of
Bihar, 13 Lalai Singh Yadav v. State of Uttar Pradesh, 14 Lalita
Kumari v. Government of Uttar Pradesh and Others,15 Mahendra
Singh Dhoni v. Yerraguntla Shyamsundar and Another,16 Manzar
Sayeed Khan v. State of Maharashtra and Another, 17 P.K.
Chakravarty v. The King,18 Pravasi Bhalai Sangathan v. Union of E

2
(2020) SCC Online SC 462
3
(1995) 3 SCC 214
4
AIR 1947 Nagpur 1
5
(1997) 7 SCC 431
6
AIR 1950 SC 129 F
7
AIR 1927 Lah 594
8
AIR 1947 PC 82
9
AIR 1971 Bom 56
10
(1990) 3 SCR 697
11
1942 FCR 38
12
(1970) 2 SCC 780
13
AIR 1962 SC 955 G
14
1971 Crl.L.J. 1773
15
(2014) 2 SCC 1
16
(2017) 7 SCC 760
17
(2007) 5 SCC 1
18
AIR 1926 Calcutta 1133
H
220 SUPREME COURT REPORTS [2020] 14 S.C.R.

A India and Others,19 Queen-Empress v. Bal Gangadhar Tilak,20 R.
v. Zundel,21 R. P. Kapur v. State of Punjab,22 Ramesh S/o Chhotalal
Dalal v. Union of India and Others,23 Ramji Lal Modi v. State of
U.P., 24 Romesh Thappar v. State of Madras, 25 Saskatchewan
(Human Rights Commission) v. Whatcott,26 Shreya Singhal v. Union
of India, 27 State of Bihar and Another v. P.P. Sharma, IAS and
B
Another,28 State of H.P. v. Pirthi Chand and Another,29 State of
Haryana v. Bhajan Lal,30 State of U.P. v. O.P. Sharma, 31 Veeda
Menez v. Yusuf Khan and Another, 32 Neelam Mahajan v.
Commissioner of Police and Others,33 Superintendent of Police, CBI
and Others v. Tapan Kumar Singh,34 Superintendent, Central Prison,
C Fatehgarh and Another v. Dr. Ram Manohar Lohia,35 T.T. Antony
v. State of Kerala and Others,36 and Virendra/ K.Narendra v. State
of Punjab and Another.37
9. The prayers made by the petitioner are opposed by the states
of Maharashtra, Rajasthan, Telangana and Uttar Pradesh, and the private
D respondents. The informants submit that the petitioner is a habitual
offender and has on numerous earlier occasions offered similar apologies.
The petitioner had twice repeated the words ‘aakrantak Chishti aya,’
followed by the words ‘lootera Chishti aya’. This assertion on three
occasions conveys and reflects the intention of the petitioner, who had
E described Khwaja Moinuddin Chishti as an invader, terrorist and robber
who had come to India to convert its population to Islam. The pretext of
19
(2014) 11 SCC 477
20
ILR (1898) 22 Bombay 112
21
[1992] 2 SCR 731
22
AIR 1960 SC 866
23
F (1988) 1 SCC 668
24
AIR 1957 SC 620
25
AIR 1950 SC 124
26
[2013] 1 SCR 467
27
(2015) 5 SCC 1
28
1992 Supp. (1) SCC 222
29
(1996) 2 SCC 37
G 30
1991 Supp (1) SCC 335
31
(1996) 7 SCC 705
32
1966 SCR 123.
33
1993 (27) DRJ 357.
34
(2003) 6 SCC 175
35
AIR 1960 SC 633
36
(2001) 6 SCC 181
H 37
AIR 1957 SC 896
AMISH DEVGAN v. UNION OF INDIA AND OTHERS 221
[SANJIV KHANNA, J.]

inadvertent mistake is an afterthought and a sham and unreal defence. A
Respondent No.9, namely, Saber Chausa Mohd. Naseer, in his affidavit
has stated that the name of Khwaja Moinuddin Chishti as a Sufi Saint
was taken by one of the panelists when the topic of conversion was
being debated. The panelist had gone on record to state that the
conversions at the time of Khwaja Moinuddin Chishti happened for
B
moral, religious and spiritual reasons and the devotees and followers of
Khwaja Moinuddin Chishti were inspired by his teachings. The affidavit
also states that the discussion at that time was not in relation to Mughals
or with reference to Aurangzeb or Allaudin Khilji. Further, the petitioner
had tampered with the broadcast of the debate uploaded on YouTube on
16th June, 2020, by deliberately deleting the part wherein the petitioner C
had used the word ‘aakrantak Chishti’ (twice) and ‘lootera Chishti’.
These acts of sieving out of offensive portions, and the subsequent apology
were after the petitioner had learnt about the protests and registration of
the FIRs at Ajmer and other places. The respondents claim that the
apology is not genuine but an act of self-defence. FIR at Ajmer was
D
registered on 16th June, 2020 at 11:58 p.m. whereas the first apology
(via Twitter) of the petitioner appeared on 17th June, 2020, at 12:12
a.m., i.e., nearly 30 hours after the live telecast of the show where
offensive words were uttered by the petitioner.
10. The points raised by the respondents can be summarised as
under: E

• The petition ought to be dismissed as Article 32 has been
invoked in a cavalier manner. Remedy under section 482
of the Code of Criminal Procedure, 1973 (hereafter referred
to as, ‘Criminal Code’) was available to the petitioner.38
F
• The offending words were uttered thrice by the petitioner,
which shows his ill intention.39 The intention of the petitioner
was to create disharmony between the two faiths/groups
and to incite disorder.40
• The debate was a staged program, where no experts or G
historians were on the panel; the program was staged to
malign the Muslims and to promote hatred.41
38
I.A. by Haji Syed Chisti, Khadim of Dargah; RESPONDENT NO. 9,
39
I.A. by Haji Syed Chisti, Khadim of Dargah; Respondent no. 9, Respondent no. 6
40
I.A. by Haji Syed Chisti, Khadim of Dargah
41
I.A. by Sajid Noormohammad Sheikh r/o Nashik, Maharashtra H
222 SUPREME COURT REPORTS [2020] 14 S.C.R.

A • The themes of the programs hosted by the Petitioner are
communal.42
• The conduct of the petitioner was against norms of
journalistic standards.43
• Petitioner uploaded an edited version of the video on
B Youtube, where he had removed the part containing the
offensive speech. This was done after FIR was lodged as
an attempt to tamper/destroy the evidence.44
• The Petitioner claimed that inadvertently he uttered
C “Chishti” in place of “Khilji”, but there is no relation between
these two historical figures. Khwaja Chishti came to India
in 1136 when Md. Ghori was defeated by Prithvi Raj
Chauhan for the first time in the battle of Tarain. Whereas,
Khiljis ruled in India from 1290 to 1320. So Khilji and
Khwaja Chishti were neither contemporaries nor related to
D each other.45
• Apology by the Petitioner was an afterthought. It came
only after the registration of FIR.46 The petitioner did not
apologize initially and let the followers of Khwaja Chishti
be outraged, in order to gain popularity.47
E
• The two persons, whose credentials the petitioner has
mentioned in the petition, to press that the members of the
community have forgiven him, is false. These two people
as TV personalities and nowhere represent the devotees
of Khwaja Chishti.48
F • FIR need not have an encyclopaedia of the event. Even if
only material facts have been disclosed, it is enough to
continue with criminal proceedings.49

42
G Respondent no. 9, Respondent no. 10
43
Respondent no. 6
44
Respondent no. 9
45
Respondent no. 9
46
I.A. by Haji Syed Chisti, Khadim of Dargah; Respondent no. 9, 47 I.A. by Haji Syed
Chisti, Khadim of Dargah; Respondent no. 9, 48 Respondent no. 9
49
Respondent no. 9
H
AMISH DEVGAN v. UNION OF INDIA AND OTHERS 223
[SANJIV KHANNA, J.]

• Some communal elements in Maharashtra, after the A
broadcast of the utterances by the Petitioner, used this
opportunity and started circulating this video to spread
hatred.50
• Article 19(1)(a) of the Constitution is subject to express
limitations under Article 19(2) of the Constitution. B
• The police should be permitted to file report under Section
173 of the Criminal Code and court should frame the
charges. Then only the petitioner would get the opportunity
to defend himself in the court.51
• Section 19 of the Cable TV (Regulation) Act prohibits cable C
TV network to broadcast any content that promotes hate
or ill will.52
• The broadcast was throughout the nation and thus cause of
action arose in Ajmer too, where the intervener resides and
serves as khadim to Dargah of Khwaja Chishti. D
• Respondent no. 5, State of Uttar Pradesh,53 reiterated the
facts of the FIR lodged at the instance of informant Amish
Devgan. Also, it has been mentioned that one FIR which
was filed in Jabalpur against the Petitioner Amish Devgan
was transferred by Jabalpur police to Gautam Budhh Nagar. E
• State of Rajasthan54 submitted:
(a) apology tendered by the petitioner would not dilute
the offence. Also, it was after 30 hours of the
broadcast of the show. F
(b) Allegations and counter allegations of facts are matter
of trial.
(c) Transfer all FIRs to Ajmer as one of the FIRs is
there, and matter also relates to Ajmer.
G

50
Respondent no. 9
51
Respondent no. 9 and Respondent no. 6
52
I.A. by Sajid Noormohammad Sheikh r/o Nashik, Maharashtra
53
sworn by DSP/ ASST. Commissioner, Noida
54
Respondent no. 3 H
224 SUPREME COURT REPORTS [2020] 14 S.C.R.

A • State of Telangana55 submitted:
(a) Complainants/informants came to the P.S.
Bahadurpura, Hyderabad and made a complaint that
the petitioner has dishonoured Khwaja Chishti.
(b) As per State of Orissa v. Saroj Kumar Sahoo,56
B probabilities of prosecution version can’t be denied
at the early stages.
(c) Normal course of investigation cannot be cut-short
in casual manner. Also, the accused has a remedy
under 482 of the Criminal Code.
C
The Show and Debate
11. Before we examine the first prayer, we must take notice of
the fact that the transcript filed by the petitioner with the original writ
petition and the amended writ petitions is not the true and correct
D transcript. As per these transcripts the petitioner is stated to have only
uttered the words “Akranta Chishti came... Lootera Chishti came
after then religion changed”. However, in the transcript filed by the
petitioner on 8th July, 2020, it is accepted that the petitioner had used the
words ‘Akranta Chishti’ not once but twice. This is the correct version.
The petitioner accepts that the topic of debate was relating to the
E challenge posed by a Hindu priest organisation to the Places of Worship
(Special Provisions) Act, 1991, according to which the de facto position
of religious places as on 15th August, 1947 could not be changed or
altered, though Ayodhya was kept out of the ambit of the Act, and this
petition was opposed by a Muslim organisation stating that if notice is
F issued there would be widespread fear among the Muslim community.
After the prelude initiating the debate, the petitioner, as per the transcript,
had stated “Today, this will be the key issue of the debate... Ayodhya
Verdict delivered, Why Kashi-Mathura issue left unresolved?...
asking Hindu Priests!”. The petitioner as per the transcript had then
declaimed:
G
“Now analyse the legal position of Kashi Mathura issue...Hindu
Priest organisation has reached Supreme Court against Places of Worship
(Special Provisions) Act, 1991...According to this Act of 1946, the de

55
Respondent no. 4
56
H (2005) 13 SCC 540
AMISH DEVGAN v. UNION OF INDIA AND OTHERS 225
[SANJIV KHANNA, J.]

facto position of any religious place could not be altered in any A
condition...According to Act a mosque could not be changed into temple
or a temple could not be changed into mosque...This is impossible...The
Ayodhya issue was out of this ambit as it was already in litigation. The
Ayodhya issue was 100 year old dispute...The priest organisation says
that Places of Worship (Special Provisions) Act, 1991 is against the
B
Hindus...Today we are not debating the issue of Kashi or Mathura...we
are debating the Places of Worship (Special Provisions) Act, 1991...What
changes should be made in this Act?...if the arguments of Hindu Priests
to be believed.”
12. We must also at this stage itself reproduce portions of the
debate, including the portion which the petitioner seeks to rely upon: C

“I don’t want to make this debate a hot topic between Hindu-
Muslim community...I would like to discuss the provisions of this
Act...First, I am going to ask questions to Mahant Naval Kishore
Das Ji...Naval ji...Why do you want a change to the provisions of
this Act?...The indication is clear...Ayodhya Jhanki Hai...Mathura D
Kashi Baaki Hain...This was the slogan of RSS, VHP and BJP...
xx xx xx
Atiq-Ur-Rehman: Amish Ji, I’m welcoming your statements that
you said you don’t want the ‘Hindu- Muslim’ saga on the matter. E
And I pay respect to Mahant Ji as well. He put his thoughts in a
well- behaved manner. The Mahant Ji raised the question; ‘a mole
in the thief’s beard’ (darta wo hai jinki dadi me tinka hota hai).
xx xx xx
Amish Devgan: F
Point Number-2: You have said that with a clever step...Atiq-Ur-
Rehman Ji I’ve listened your statement, you talked around 2-2½
inutes. You said that the verdict on the Ayodhya case came on the
board cleverly. But, I want to refresh your memory; in the year of
1991-92 when there had the slogan for the Ayodhya in the air the G
Sant Samaj, VHP, Rashtriya Swayamsevak Sangh and authentic
persons of the Hindu Samaj used to say Ayodhya jhanki hai, Kashi-
Mathura baki hai.
So the demand is very old. The wish is too old. But when the
Ayodhya’s wish was fulfilled then definitely after that verdict you H
226 SUPREME COURT REPORTS [2020] 14 S.C.R.

A are raising the question on your own ways. That is your take.
Now I’m moving to Dr. Sudhandhu Trivedi, Jamiat Ulema-e-Hind
are saying that if these types of petitions to be heard then thee
will be a danger to the Muslim worship places.
xx xx xx
B Amish Devgan: Dr. Trivedi, you made your point. I’m moving to
Maulana Ali Kadri, he is senior guy. Kadri Sahab; I’m asking you
straight. The Saints/Pujaris/ Purohits/Mahants have a constitutional
right that they file the writ in the Supreme Court against the 1991
Act. And they have right to talk about the Kashi and Mathura.
C But, if there is the Dukan is the convcern, Dar ki Dukan to pahle
hi khol di. In that petition had said if there was a notice on it the
Muslims would feel that their worship places were not safe. They
feel fear. Jamiat Ulema-e-Hind’s petition says then who is opening
the Dar ki Dukan. The Dar ki Dukan has already opened. This is
the constitutional right?
D
xx xx xx
Amish Devgan: Ali Qadri Sahab, why the Jamiat Ulema- e-Hind
is hiding its failure? Why the organisation is saying that there will
be a fear in the Muslims for their worship places due to the notice?
E If you want to show Dr. Sudhandhu Trivedi’s party’s failure and
wish to expose the RSS and VHP, then please tell in 20 seconds.
xx xx xx
Amish Devgan: Mr. Vinod Bansal, there is a symbol of Om is
showing behind you. Om, the symbol of peace. But Maulana Ali
F Kadri is saying; you want to spread Ashanti. You have defeated
by corona and now seeking a base from the Mathura-Kashi issues.
After these issues you will raise the Jama Masjid matter and Taj
Mahal will be in your hit list.
xx xx xx
G Amish Devgan: Then how the Kashi-Mathura issue came into
limelight?
Vinod Bansal: There is clearly written that the 1947’s status to
be maintained. Despite of that why the properties had transferred
to the Waqf Board in a large level? Waqf Board asked properties
H
AMISH DEVGAN v. UNION OF INDIA AND OTHERS 227
[SANJIV KHANNA, J.]

on the name of Mazars, Mosques and Graveyards several times. A
Is all the things are belong to their father (Ye sara inka, inke Baap
ka hai?) This is not the right way.
The first thing is, if the law had implemented, it should complete in
a shape.
And the second one is...is it not true that thousands of the Hindu B
temples had demolished? The Hindu had converted and humiliated
in a large scale. There should be needed to rectify the historical
wrongs. Why they are trying to escape from the reality.
Amish Devgan: The historical wrong should rectify. Though
several historians said the Eidgah and Krishan Janam Bhoomi in C
Mathura are situated adjacent to each other. Several historians
claimed that in the 17 th century emperor Aurangzeb had
demolished a temple and had built a mosque on the very same
place. VHP’s Giriraj Kishor also said the same thing that on the
place where the mosque is situated in Mathura, the Lord Krishnan D
had birthed on the same place. Besides that, he said several things.
Now I want to move to Shadab Chauhan. He wishes to say
something. Please go ahead.
Shadab Chauhan: Peace Party pay respect to the Constitution
of India and the social harmony. So, we have filed the curative E
petition for the justice. Now we will talk about Kashi and Mathura.
After defeating from the coronavirus, government is trying to divert
the nation’s attention by raising the issue of Kashi and Mathura.
And now I’m saying with the challenge that there should not be
any ‘nanga-nach’ like the 1992, on the name of worship place. F
We respect the 1991 law. I deeply said that my elder brother
Sudhanshu Trivedi Ji said, that the temples which had built after
August 15, 1947, will be removed. Are you talking about
demolishing the temples? The Ram Mandir which will be
constructed, have you will demolish it as well?
G
And the second thing is, the Ram Mandir verdict came on basis
of the faith and we are not satisfied with the decision. So we
moved to the court. This is the matter of justice not of any religion’s
issue. Now we will not allow any goon to insult the saffron colour.
The terror was made with demolishing the Babri Masjid.
H
228 SUPREME COURT REPORTS [2020] 14 S.C.R.

A Amish Devgan: What you said? Repeat it. The insult of the saffron
colour...we...any...what did you say?
Shadab Chaudhary: Listen...insult of the saffron colour. We don’t
allow any goon to demolish any worship place and don’t allow kill
the innocents.
B Amish Devgan: No...You can’t say goons to the Sant Samaj. I
objected completely. Shadab Chauhan you said a wrong thing.
You said India’s Sant Sama/Purohit- Pande of the country are
goons.
Mahant Nawal Kishor Das: These people should apologise. You
C invite such people for the debate? They didn’t pay respect to their
ancestors too. Due to the fear they converted in the other religion.
Shadab Chauhan: They are goons.
xx xx xx
D Amish Devgan: You are wrong...we do not have any problem
with Muslims...we do not have problems with Abdul Kalam, we
do not have problem with Dara Shikoh but yes...we do have
problem with AURANGZEB...being a Hindustani we should have
problems with Aurangzeb.
E xx xx xx
Maulan Qadri: I will answer Sudhandhu Sahab...Sudhanshu has
said that the Ram Mandir decision was not merely based on
faith...A few days before today, Shivlinga got excavated there,
after that I do not want to name anything else and there was an
F idol of someone there...So it should be decided if there was a
Ram temple or Jain temple, it can be disseminated to you...the
excavation says another story...if talk about name of Shadab
Chauhan or anybody else...we are proud to said that after Khawaja
Moinuddin Chisti...a lot of Indians converted to Islam and saw
Moinuddin’s execution and converted to Islam by seeing his
G life...but not all the Muslims who are in India are converts.
Amish Devgan: Maulana sahib, you took the name of
Chishti...Now tell me, you are in today’s age, after watching Donald
Trump, he is a Christian, you will not change your religion, will not
change religion after seeing Prime Minister Narendra Modi’s
H religion...
AMISH DEVGAN v. UNION OF INDIA AND OTHERS 229
[SANJIV KHANNA, J.]

xx xx xx A
Maulana Ali Qadri: Seeing the implementation of Khwaja
Moinuddin Chishti...Seeing the Talimat of Islam that all live
together, there is no inferiority Seeing Moinuddin’s life, people
accepted Islam...
Amish Devgan: Dr. Sudhanshu Trivedi...Akranta Chishti B
came...Akranta Chisti came Lootera Chishti came after then
religion changed.
Maulana Qadri: No man accepted Islam at the edge of the
sword...He became a Muttasir from Islam and accepted Islam
by liking the teachers of Islam...I would like to say that to you... C

xx xx xx
Amish Devgan: Vinod ji, I got your point. Why Jamiat is creating
fear mongering among Muslim community...Jamiat is creating false
perception that their place of worship is closing... D
xx xx xx
Ateeq-ur-Rehman: Amish let’s discuss the Act only in the
beginning of the show, you mentioned that Hindu- Muslim slugfest
should not happen...We are adhere to this...Vinod Bansal is now
saying that 1991 Act’s provision should be discussed again...Is it E
not insult to Parliament...The Act was passed in Parliament when
BJP was also present in the House...Why they have not discussed
this issue before Ram Mandir verdict...Why they were silent...
Vinod Bansal: This case was in consideration before Ram Mandir
issue. F
Ateeq-ur-Rehman: Amish ji...Mahant ji talking about Hindu
pride...What about Buddhist pride...
xx xx xx
Amish Devgan: I am stopping for break Sudhanshu ji Sudhanshu G
ji I am staying for break but on public demand, Shadab Chauhan
will apologize after the break...I will go to Shadab Chauhan after
the break. He will apologize to the whole saint society...I am coming
back after the break and if he don’t apologise, he will have to get
out of this debate.
H
230 SUPREME COURT REPORTS [2020] 14 S.C.R.

A xx xx xx
Amish Devgan: Yes or no...I am not giving a chance to say yes or
no...You will either apologize, your audio will open. If you do not
apologize, I will say thank you...Thank you for coming...
Shadab Chauhan: The son of the farmer says that he...
B
Amish Devgan: The son of a farmer is not a matter of a son of a
farmer, it is a matter of saints...
Shadab Chauhan: I leave the debate...They are goons, they are
goons. Those who fight in the name of religion are goons...
C Amish Devgan: I will not ask for forgiveness keep shouting I do
not matter...I will not ask for forgiveness...
Shadab Chauhan: No ........................................ Farmer’s son
won’t apologise.
Amish Devgan: So get out again...You get this person out of
D
debates...Turn off the audio of this...I never say that to any
guest...But you spoke derogatory words...Show this person show
a full frame...You are a foolish man...Open the audio, what is he
saying...
Shadab Chauhan: And but goons will be called goons...
E
Amish Devgan: Apologise to the saint community...
Shadab Chauhan: I respect all religions but goons will be called
goons...
Amish Devgan: Same respect for all religions, everybody spoke
F about religion...Nobody called anything derogatory to Jamiat Ulema
Hind...No one spoke...The saints who are putting up a social petition
would be called goons...goons?..
Shadab Chauhan: There are hooligans who break religious
places...There are goons who break the Constitution are goons
G who destroy the Constitution...
Amish Devgan: Shut up and get out. You are out...You are not fit
to sit in this debate. You are out...Turn these out. Turn off the
audio. Keep eating the minds of your family...get out of here...I
am asking you Qadri sahib...the words used by Shadab Chauhan,
H were they wrong or right?
AMISH DEVGAN v. UNION OF INDIA AND OTHERS 231
[SANJIV KHANNA, J.]

Maulana Ali Qadri: See...the use of such derogatory words for A
any religion is not approved by me or by anybody...
Amish Devgan: Thanks.
Maulana Qadri: It is necessary to respect the Guru of any
religion. I believe it to be yours and it is a request from you also
that do not use the word Islamic terrorism...because terror has no B
religion...
xx xx xx
Amish Devgan: Thank you very much...Mahant ji, I am sorry, I
will not be able to give more time than this...Thank you very C
much...for keeping your point in our discussion...Finally, I will
always I conclude...
But in conclusion today, I want to say something that we should
respect all religions...But many people wrote that Shadab Chauhan
should not be called in this debate, such people are abusive...See D
we can’t judge people on the basis of their face...He had done
wrong...we put him out of debate...but it is very important to
boycott such people...and that’s why we boycotted them in this
debate...Namaskar...”
A. First Prayer – Whether the FIRs should be quashed?
E
(i) Cause of Action
13. We reject the contention of the petitioner that criminal
proceedings arising from the impugned FIRs ought to be quashed as
these FIRs were registered in places where no ‘cause of action’ arose.
Section 179 of the Criminal Code provides that an offence is triable at F
the place where an act is done or its consequence ensues. It provides:
“179. Offence triable where act is done or consequence ensues:
When an act is an offence by reason of anything which has been
done and of a consequence which has ensued, the offence may
be inquired into or tried by a Court within whose local jurisdiction G
such thing has been done or such consequence has ensued.”
The debate-show hosted by the petitioner was broadcast on a
widely viewed television network. The audience, including the
complainants, were located in different parts of India and were affected
by the utterances of the petitioner; thus, the consequence of the words H
232 SUPREME COURT REPORTS [2020] 14 S.C.R.

A of the petitioner ensued in different places, including the places of
registration of the impugned FIRs.
Further, clause (1) of Section 156 of the Criminal Code provides
that any officer in-charge of a police station may investigate any
cognizable case which a court having jurisdiction over the local limits of
B such station would have the power to inquire into or try. Thus, a conjoint
reading of Sections 179 and 156 (1) of the Criminal Code make it clear
that the impugned FIRs do not suffer from this jurisdictional defect.
(ii) Defence of causing slight harm
14. The petitioner has relied upon the decision of this Court in
C Veeda Menez and the decision of the High Court of Delhi in Neelam
Mahajan to plead the defence of trifle under Section 95 of the Penal
Code. We are not inclined at this stage to entertain this defence of the
Petitioner. Section 95 is intended to prevent penalisation of negligible
wrongs or offences of trivial character. Whether an act, which amounts
D to an offence, is trivial would undoubtedly depend upon the evidence
collated in relation to the injury or harm suffered, the knowledge or
intention with which the offending act was done, and other related
circumstances. These aspects would be examined and considered at
the appropriate stage by the police during investigation, after investigation
by the competent authority while granting or rejecting sanction or by the
E Court, if charge-sheet is filed. The present case cannot be equated with
either Veeda Menez or Neelam Mahajan’s case where the factual
matrix was undisputed and admitted. It would be wrong and inappropriate
in the present context to prejudge and pronounce on aspects which are
factual and disputed. The ‘content’ by itself without ascertaining facts
F and evidence does not warrant acceptance of this plea raised by the
petitioner. The defence is left open, without expressing any opinion.
(iii) Hate Speech
15. Benjamin Franklin, in 1722, had stated:
“Without Freedom of Thought, there can be no such Thing as
G
Wisdom; and no such Thing as public Liberty, without Freedom of
Speech; which is the Right of every Man, as far as by it, he does
not hurt or control the Right of another; And this is the only Check
it ought to suffer, and the only Bounds it ought to know.”

H
AMISH DEVGAN v. UNION OF INDIA AND OTHERS 233
[SANJIV KHANNA, J.]

Two centuries later it remains difficult in law to draw the outmost A
bounds of freedom of speech and expression, the limit beyond which the
right would fall foul and can be subordinated to other democratic values
and public law considerations, so as to constitute a criminal offence.
The difficulty arises in ascertaining the legitimate countervailing public
duty, and in proportionality and reasonableness of the restriction which
B
criminalises written or spoken words. Further, criminalisation of speech
is often demarcated and delineated by the past and recent significant
events affecting the nation including explanation of their causes.
Therefore, constitutional and statutory treatment of ‘hate speech’ depends
on the values sought to be promoted, perceived harm involved and the
importance of these harms.57 Consequently, a universal definition of ‘hate C
speech’ remains difficult, except for one commonality that ‘incitement
to violence’ is punishable.
16. This Court in 2014, in Pravasi Bhalai Sangathan had
requested the Law Commission of India to examine the possibility of
defining the expression ‘hate speech’, and make recommendations to D
the Parliament to curb this menace, especially in relation to electoral
offences. This Court had expressed difficulty in ‘confining the prohibition
to some manageable standard’. The Law Commission, in its 267th Report
on Hate Speech had recommended amendments to the criminal laws
for inserting new provisions prohibiting incitement to hatred and causing
fear, alarm, or provocation of violence in certain cases, but these have E
not yet been accepted by the government. Referring to the Constituent
Assembly Debates and the Constitution, the Report observes that the
right to speech was not to be treated as absolute, but subject to restrictions
on the grounds like sedition, obscenity, slander, libel and interest of public
order. If the State is denied power to restrict speech on the basis of F
content, it might produce debates informed by prejudices of the public
that would marginalise vulnerable groups and deny them equal space in
the society. The mode of exercise of free speech, the context and the
extent of abuse of freedom are important in determining the contours of
permissible restrictions. The Commission also felt that laying down of a
definite standard might lead to curtailment of free speech; a concern G
that has prevented the judiciary from defining hate speech in India.
However, this is not to deny that the courts while adjudicating each case

57
Hate Speech in Constitutional Jurisprudence: A Comparative Analysis by Michel
Rosenfeld, 24 Cardozo L. Rev. 1523 2002-2003
H
234 SUPREME COURT REPORTS [2020] 14 S.C.R.

A have to inevitably apply an objective test in terms of the legislative
provisions. This is an inescapable legal necessity to ensure certainty and
to prevent abuse and misuse, as failure to do so would curtail and
subjugate the right to free speech and expression to occasional whims
and even tyranny of subjective understanding of the authorities.
Difference between free speech and hate speech in the context of the
B
penal law must be understood.
17. The Law Commission report analysed the legal standards under
various instruments of international law that lay down the regime for
controlling and preventing hate speech, which we will encapsulate. Article
20(2) of the International Covenant on Civil and Political Rights, 1966
C (ICCPR) prohibits ‘advocacy of national, racial or religious hatred that
constitutes incitement to discrimination, hostility or violence’. Similarly,
Articles 4 and 6 of the International Convention on the Elimination of All
Forms of Racial Discrimination, 1966 (CERD), prohibits ‘dissemination
of ideas based on racial superiority or hatred, incitement to racial
D discrimination as well as all acts of violence or incitement to such acts
against any race or group of persons of another colour or ethnic origin…’.
The Human Rights Council’s Report of the Special Rapporteur on the
Promotion and Protection of the Right to Freedom of Opinion and
Expression, in the context of internet content, states that freedom of
expression can be restricted on grounds like hate speech (to protect
E rights of affected communities), defamation (to protect the rights and
reputation of individuals against unwarranted attacks), and ‘advocacy’
of national, racial or religious hatred that constitutes incitement to
discrimination, hostility or violence (to protect the rights of others). Article
10 of the European Convention of Human Rights guarantees the right to
F freedom of expression, subject to certain ‘formalities, conditions,
restrictions or penalties’ in the interest of … public safety, for the
prevention of disorder or crime… for the protection of the reputation or
rights of others…’. Further, Article 17 of the Convention prohibits abuse
of the right by ‘any State, group or person’. The Council of Europe’s
Committee of Ministers to Member States on Hate Speech has defined
G ‘Hate Speech’ as ‘covering all forms of expression which spread, incite,
promote or justify racial hatred, xenophobia, anti-Semitism or other forms
of hatred based on intolerance, including: intolerance expressed by
aggressive nationalism and ethnocentrism, discrimination and hostility
against minorities, migrants and people of immigrant origin.’ The Law
H
AMISH DEVGAN v. UNION OF INDIA AND OTHERS 235
[SANJIV KHANNA, J.]

Commission report notes that pluralism, tolerance, peace and non- A
discrimination have been termed non-derogatory values by the European
Court of Human Rights in ascertaining the extent of free speech allowed
under the Convention; speech propagating religious intolerance,
negationism, homophobia etc. has been excluded from the ambit of Article
10 of European Convention of Human Rights and the importance of
B
responsible speech in a multicultural society has been stressed by the
court in several cases. The Law Commission report has noted that in
recent years, the European Court of Human Rights has moved from a
strictly neutral approach, wherein not every offensive speech was
considered illegitimate, by holding that interference is not to be solely
judged on legitimate aim test but also whether such interference was C
necessary in a democratic society. This moderation takes into account
that affording protection to all kinds of speech, even offensive ones,
many times vilifies the cause of equality.
18. We will now succinctly refer to the American position which
discloses a strong preference for liberty over equality, and commitment D
to individualism, predicated on the belief that:
“...Truth was definite and demonstrable and that it had unique
powers of survival when permitted to assert itself in a “free and
open encounter.” [...] Let all with something to say be free to
express themselves. The true and sound will survive; the false E
and unsound will be vanquished. Government should be kept out
of the battle and not weigh the odds in favor of one side or the
other. And even though the false may gain a temporary victory,
that which is true, by drawing to its defence additional forces, will
through the self-righting process ultimately survive.” 58
F
19. The American framework on hate speech is based upon four
major philosophical justifications.59 Justification from democracy is based
on the belief that free speech enables a democratic self- government by
allowing citizens to convey and receive ideas. This rationale does not
grant protection to speech that is anti- democratic in general, and hateful
or political extremist in particular. Another justification comes from the G
58
Frederick Siebert writing on John Milton’s Areopagitica, 1644, in The Libertarian
Theory of the Press, in FOUR THEORIES OF THE PRESS 39, 44-45
59
“Justification from democracy, the justification from social contract, the justification
from the pursuit of the trust, and the justification from individual autonomy.” – Cardozo
L.Rev.1523 2002-2003 (HeinOnline). H
236 SUPREME COURT REPORTS [2020] 14 S.C.R.

A social contract theory, which requires that ‘fundamental political institutions
must be justifiable in terms of an actual or hypothetical agreement among
all members of the relevant society.’ The third justification – pursuit of
the truth, is based on the utilitarian philosophy. Popularly known as the
justification based on ‘free marketplace of ideas,’ it is grounded in the
notion that truth is more likely to prevail through open discussion, and
B
that the society will be better able to progress if the government is kept
out of adjudicating as to what is true or false, valid versus invalid, or
acceptable against abhorrent. The fourth justification comes from the
idea of autonomy, and is primarily individualistic, unlike the previous three
that value collective good. According to this, free speech enables
C individual autonomy, respect and well-being through self-expression.
20. The threshold or the standard in American jurisprudence to
determine the circumstances under which the First Amendment freedoms
of speech, press and assembly should be restricted has with time moved
from the ‘bad tendency test’ i.e., prohibiting speech if it has tendency to
D harm public welfare, to the test of ‘clear and present danger’,60 and to
finally the test of ‘imminent lawless action’. Mr. Justice Douglas in his
concurring opinion in Brandenburg v. Ohio61 had adumbrated that the
‘clear and present danger’ precept in pronouncements during World War
I and to check Marxism had moved away from the First Amendment
ideal as in Dennis v. United States62 ‘not improbable’ standard was
E followed. The ‘imminent lawless action’ test has three distinct elements,
namely – intent, imminence and likelihood. In other words, the State
cannot restrict and limit the First Amendment protection by forbidding or
proscribing advocacy by use of force or law, except when the speaker
intends to incite a violation of the law – that is both imminent and likely.
F 21. Michel Rosenfeld in his essay63 states that primary function
of free speech has taken different forms in four historical stages. The

60
Mr. Justice Holmes in Schenek v. United States, 249 U.S. 47 (52), has described the
test as:
“The question in every case is whether the words used are used in such
G circumstances and are of such a nature as to create a clear and present danger
that they will bring about the substantive evils that Congress has a right to
prevent. It is a question of proximity and degree.”
61
395 U.S. 444 (1969)
62
341 U.S. 494
63
‘Hate Speech in Constitutional Jurisprudence: A Comparative Analysis’ by Michel
H Rosenfeld, 24 Cordozo L. Rev. 1523 2002-2003
AMISH DEVGAN v. UNION OF INDIA AND OTHERS 237
[SANJIV KHANNA, J.]

first stage, dating back to the War of Independence, established protection A
of people against the government as the dominant function of free speech.
In the second stage, as democracy became entrenched in the USA, free
speech was meant to protect proponents of unpopular views against the
tyranny of the majority. Stage three, panning between mid-1950s to 1980s
when there was widespread consensus on essential values, saw the
B
main function of free speech shift from lifting restraints on speakers to
ensuring that listeners remain open-minded. Finally, with the rise of
alternative discourses such as feminist and critical race theories attacking
mainstream and official speech as inherently oppressive, the primary
role of free speech became the protection of oppressed and marginalised
discourses against the hegemony of discourses of the powerful. C
Accordingly, there are suggestions that ‘imminent lawless action’ fails
to take into consideration and is prone to undermine the autonomy or
self-respect of those whom the hate speech targets. Critics emphasise
on the threat posed by unconstrained speech by the hegemony of
dominant discourses at the expense of discourses of others, which as a
D
result may only exacerbate the other’s humiliation and denial of self-
respect and autonomy. Counter approach reflects on the impact of hate
speech on target and non-target audiences. The targeted audiences could
experience anger, fear, concern and alienation. The non-targeted
audiences may have different experiences from reversion to mixed
emotions to downright sympathy for the substance of the main hate E
message, if not the form. This has long-term effects even on the non-
targeted audiences, as even when they do not agree, they tend to accept
as normal the message of hate over a period of time.
22. The Canadian jurisprudence on the subject proceeds on the
basis of inviolability of human dignity as its paramount value and F
specifically limits the freedom of expression when necessary to protect
the young and the right to personal honour. Canadian approach emphasises
on multiculturalism and group equality, as it places greater emphasis on
cultural diversity and promotes the idea of ethnic mosaic. The Canadian
Supreme Court in James Keegstra had upheld the criminal conviction
of a high school teacher for anti-Semitic propaganda on the ground that G
it amounts to wilful promotion of hatred against a group identifiable on
the basis of colour, race, religion or ethnic origin. It was observed as
under:

H
238 SUPREME COURT REPORTS [2020] 14 S.C.R.

A “(1) seeking and attaining truth is an inherently good activity; (2)
participation in social and political decision-making is to be fostered
and encouraged; and (3) diversity in forms of individual self-
fulfillment and human flourishing ought to be cultivated in a tolerant
and welcoming environment for the sake of both those who convey
a meaning and those to whom meaning is conveyed.”
B
The Canadian position, therefore, considers the likely impact of
hate speech on both the targeted groups and non-targeted groups. The
former are likely to be degraded and humiliated to experience injuries to
their sense of self-worth and acceptance in the larger society and may
well, as a consequence, avoid contact with members of the other group
C within the polity. The non-targeted members of the group, sometimes
representing society at large, on the other hand, may gradually become
de-sensitised and may in the long run start accepting and believing the
messages of hate directed towards racial and religious groups. These
insidious effects pose serious threats to social cohesion rather than merely
D projecting immediate threats to violence. Dixon, C.J., in Canada (Human
Rights Commission) v. Taylor,64 had observed:
“...messages of hate propaganda undermine the dignity and self-
worth of targeted group members and, more generally, contribute
to disharmonious relations among various racial, cultural and
E religious groups, as a result eroding the tolerance and open
mindedness that must flourish in a multicultural society which is
committed to the idea of equality.”
23. Saskatchewan (Human Rights Commission) had laid down
three tests to determine whether an expression could qualify as hate
F speech or not. First, courts must apply the hate speech prohibitions
objectively by applying the test of a reasonable person. Secondly, the
legislative term ‘hatred’ or ‘hatred or contempt’ must be interpreted to
mean the extreme form of the emotions, i.e. detestation and vilification.
Thirdly, the effect of the expression on the targeted group should be
determined by the Court. Canadian laws attempt to restrict false and
G discriminatory statements that are likely to lead to breach of peace. In
R. v. Zundel the Court observed that publishing and spreading false
news that was known to be false is likely to cause injury to public interest
and multiculturalism.

64
H (1990) 3 SCR 892
AMISH DEVGAN v. UNION OF INDIA AND OTHERS 239
[SANJIV KHANNA, J.]

24. In Australia, the position of law is substantially aligned with A
that in Canada. The Australian Federal Court, in the case of Pat Eatock
v. Andrew Bolt65 followed the dictum in Keegstra in holding that the
right to freedom of expression could be restricted vide legislation which
made racial hatred a criminal offence. The Federal Court quoted with
approval the observations in Keegstra that had examined and rejected
B
the underlying rationale theory, to hold:
(a) The justification from pursuit of truth does not support the
protection of hate propaganda, and may even detriment our
search for truth. The more erroneous or mendacious a
statement, the less its value in the quest of truth. We must
not overemphasise that rationality will overcome all C
falsehoods.
(b) Self-fulfilment and autonomy, in a large part, come from
one’s ability to articulate and nurture an identity based on
membership in a cultural or religious group. The extent to
which this value furthers free speech should be modulated D
insofar as it advocates an intolerant and prejudicial disregard
for the process of individual self-development and human
flourishing.
(c) The justification from participation in democracy shows a
shortcoming when expression is employed to propagate E
ideas repugnant to democratic values, thus undermining the
commitment to democracy. Hate propaganda argues for a
society with subversion of democracy and denial of respect
and dignity to individuals based on group identities.
25. The South African position regards dignity as paramount F
constitutional value and the law and the courts are willing to subjugate
freedom of expression when the latter sufficiently undermines the former.
The constitutional provision, therefore, enjoins the legislature and the
court to limit speech rights and the exercise of those rights which deprive
others of dignity. G
26. The position in the United Kingdom has shifted over the years
from reinforcing the security of the government to checking incitement
to racial hatred among non-target audience with the aim of protecting

65
(2011) FCA 1103 H
240 SUPREME COURT REPORTS [2020] 14 S.C.R.

A targets against racially motivated harassment. The Race Relations Act,
1965 makes it a crime to utter in public or publish words ‘which are
threatening, abusive or insulting’ and which are intended to incite hatred
on the basis of race, colour or national origin. The Act focuses on
‘incitement to hatred’ rather than ‘incitement to violence’ but requires
proof of intent for conviction. It also distinguishes between free speech
B
and protects expression of political position but checks and criminalises
illegal promotion of hate speech on basis of race, colour or national
origin.66
27. Germany, on the other hand, and by contrast, believes that
freedom of expression is one amongst several rights which is limited by
C principles of equality, dignity and multiculturalism. Further, value of
personal honour always triumphs over the right to utter untrue statements
or facts made with the knowledge of their falsity. If true statements of
fact invade the intimate personal sphere of an individual, the right to
personal honour triumphs over the freedom of speech. If such truth
D implicates the social sphere, the court once again resorts to balancing.
Finally, if the expression of opinion as opposed to a fact constitutes a
serious affront to the dignity of a person, the value of person however
triumphs over the speech. But if damage to reputation is slight, then
again, the outcome of the case will depend on careful judicial balancing.
Therefore, German application strikes a balance between rights and
E duties, between the individual and the community and between the self-
expression needs of the speaker and the self- respect and dignity of the
listeners. It recognises the content- based speech regulation. It also
recognises the difference between fact and opinion.67
28. The United States and France saw birth of democracy vide
F 18th century revolutions that strove to guarantee rights to individuals.
However, the situations were quite different. In France, the revolution
sought to limit, if not abolish – the prerogatives of rich and powerful
catholic church. The French Parliament defined ‘religious freedom’ in
individual terms and in August, 1789 adopted the declaration des Droits
G de l’Homme et du Citoy en, which declared – ‘no one may be disturbed
for his opinions, even religious ones, provided that their manifestation

66
‘Hate Speech in Constitutional Jurisprudence: A Comparative Analysis’ by Michel
Rosenfeld, 24 Cordozo L. Rev. 1523 2002-2003
67
See Hate Speech in Constitutional Jurisprudence: A Comparative Analysis by Michel
H Rosenfeld, 24 Cardozo L. Rev. 1523 2002-2003.
AMISH DEVGAN v. UNION OF INDIA AND OTHERS 241
[SANJIV KHANNA, J.]

does not trouble the public order established by the law’. In 1905, A
Declaration of Laïcité, freedom of conscience, the freedom to believe
or not believe, was enshrined in the Constitution. The principle recognises
freedom to practice religion, in private or in public, as long as the
manifestation of the practice does not disturb the peace. The State
guarantees equality to all citizens regardless of their philosophical or
B
religious conviction as all persons are born and remain free and equal in
right. Everyone is free to express their own particular convictions and
adhere to it. Laïcité confederates and reinforces the unity of the nation
by bringing citizens together by adhering to values of the republic which
includes the right to accept differences.68 In accordance with the above
principle, the French recognise and accept the right to offend as an C
essential corollary to freedom of expression which should be defended
or upheld by other means, than by causing an offence. France does
have hate speech laws against racism and xenophobia, which includes
anti-religious hate crimes, to protect groups and individuals from being
defamed or insulted on the ground of nationality, race, religion, ethnicity,
D
sex, sexual orientation, gender identity or because they have a handicap.
However, the French law gives primacy to freedom of expression, which
it believes is meaningless without the right to offend, which would to
some not only include the right to criticise and provoke but also the right
to ridicule when it comes to ideas and beliefs, including religious beliefs.
29. Andrew F. Sellars, in his essay ‘Defining Hate Speech’69 has E
examined the concept of hate speech in different democratic jurisdictions,
and refers to attempts to define ‘hate speech’ by scholars and academics,
including Mari J. Matsuda, Mayo Moran, Kenneth D. Ward, Susan
Benesch, Bhikhu Parekh and others. The Author has formulated common
traits in defining ‘hate speech’ observing that this would be helpful and F
relevant in considering how the society should respond. These can be
categorised as follows:
(a) Hate speech targets a group, or an individual as a member
of the group. The word ‘group’ has been traditionally used
with reference to historically oppressed, traditionally G
disadvantaged or minority, but some prefer not to look for a
defined group but to see whether the speaker targets
68
Declaration for Laïcité – Observatoire de la laicite (Republique Francaise)
69
Andrew F. Sellers, Defining Hate Speech, published by Berkman Klein Center for
Internet & Society at Harvard University H
242 SUPREME COURT REPORTS [2020] 14 S.C.R.

A someone based on an arbitrary or normatively irrelevant
feature. The expression ‘group’ would include identification
based upon race, ethnicity, religion, gender, sexual
orientation, sexual identity, appearance, physical ability, etc.;
(b) Content of the message should express hatred. Hostility
B towards a group in the spoken words reflects the intent of
the speaker. One should be able to objectively identify the
speech as an insult or threat to the members of the targeted
group, including stigmatising the targeted group by ascribing
to it qualities widely disregarded as undesirable;
C (c) Speech should cause harm, which can be physical harm
such as violence or incitement and true threats of violence
and can include deep structural considerations caused by
silent harm because of the victim’s desperation that they
cannot change the attribute that gives rise to hatred. The
speech could permeate and impact the victim’s relationship
D with others, cause denial of oneself and result in structural
harms within the society;
(d) Intent of the speaker to cause harm or other bad activity to
most is an essential feature of hate speech. In some statutes
it can be even tacit inherent component. However, what
E the speaker should intend to constitute hate speech is subject
to varied positions. Intent may refer to non-physical aspects
like to demean, vilify, humiliate, or being persecutorial,
disregarding or hateful, or refer to physical aspects like
promoting violence, or direct attacks. However, speakers
F can lie about their intent not only to others but to themselves.
Intent may be disguised and obscured;
(e) Speech should incite some other consequence as a result
of the speech. Incitement could be of non-physical reactions
such as hatred, or physical reactions such as violence.
G Certain jurisdictions require that the incitement should be
imminent or almost inevitable and not too remote;
(f) Context and occasion of the speech is important. This
requirement means looking into the factors such as the
power of the speaker, place and occasion when the speech
was made, the receptiveness of the audience and the history
H
AMISH DEVGAN v. UNION OF INDIA AND OTHERS 243
[SANJIV KHANNA, J.]

of violence in the area where the speech takes place. It A
requires examination whether the statement was made in
the public to the view of the targeted group as an undesirable
presence and a legitimate object of hostility. In certain
contexts, at ‘home speeches’ may themselves amount to
hate speeches as the said speeches are now uploaded and
B
circulated in the virtual world through internet etc.; and lastly
(g) Speech should have no redeeming purpose, which means
that ‘the speech primarily carries no meaning other than
hatred towards a particular group’. This is necessarily
subjective and requires examination of good faith and good
motives on the part of the speaker. ‘No legitimate purpose’ C
principle being abstract has difficulties, albeit is well
documented. ‘Good faith’ and ‘no legitimate purpose’
exclusions are accepted as a good exception.
C. Decisions of this Court and High Courts interpreting
Article 19(1)(a) and 19(2) of the Constitution, and Sections 153A, D
295A and clause (2) of Section 505 of the Penal Code
30. In Ramji Lal Modi, a Constitution Bench of five Judges,
relying upon the earlier decisions in Romesh Thappar and Brij
Bhushan, had upheld the constitutional validity of Section 295A, a
provision which criminalises the act of insulting religious beliefs with the E
deliberate intention to outrage religious feelings of a class of citizens.
Ruling that the right to free speech is not absolute as Article 19(2) of the
Constitution envisages reasonable restrictions, this court observed that
the phrase ‘public order’, as a ground for restricting the freedom of
speech, incorporated in Article 19(2) vide the Constitution (First F
Amendment) Act, 1951 with retrospective effect, reads ‘in the interest
of public order’, which connotes a much wider import than
‘maintenance of public order’. This distinction between ‘maintenance
of public order’ and ‘in the interest of public order’ was reiterated by
another Constitution Bench of five Judges of this Court in Virendra/
K.Narendra. G
31. Even so, in Ramji Lal Modi Section 295A of the Penal Code
was interpreted punctiliously observing:
“9...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
H
244 SUPREME COURT REPORTS [2020] 14 S.C.R.

A 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...”
Import of Section 295A of the Penal Code, Ramji Lal Modi holds,
B is to curb speech made with ‘malicious intent’ and not ‘offensive
speech’. Criminality would not include insults to religion offered
unwittingly, carelessly or without deliberate or malicious intent to outrage
the religious feelings. Only aggravated form of insult to religion when it
is perpetuated with deliberate and malicious intent to outrage the religious
feelings of that group is punishable. Notably, this court had already
C dismissed the Special Leave Petition and upheld Ramji Lal Modi’s
conviction under Section 295A for having published an article in a
magazine against Muslims. It was specifically noticed that even earlier,
the journalist in question had printed and published an article or a cartoon
about a donkey on which there was agitation by Muslims in Uttar Pradesh,
D which after prosecution, however, had eventually resulted in petitioner’s
acquittal by the Allahabad High Court.
32. In Kedar Nath Singh, a Constitution Bench of five Judges of
this Court had interpreted Sections 124A and 505 of the Penal Code
post amendment to clause (2) to Article 19 of the Constitution widening
E its ambit by incorporating the words- ‘in the interest of’ … ‘public
order’. Reference was made to the difference in approach and
interpretation by Sir Maurice Gwyer, C.J., speaking for the Federal Court
in Niharendu Dutt Majumdar and the decision of the Privy Council in
Sadashiv Narayan Bhalerao, which had approved the elucidation by
Strachey, J. in Bal Gangadhar Tilak. This court held that the exposition
F of law by the Federal Court in Niharendu’s case would be apposite and
in conformity with the amended clause (2) of Article 19. Specific
reference was made to the dissenting opinions of Fazl Ali, J., in Romesh
Thappar and Brij Bhushan, to observe that the difference between
the majority opinion in the two cases and the minority opinion of Fazl Ali,
G J. had prompted the Parliament to amend clause (2) of Article 19 by the
Constitution (First Amendment) Act, 1951 with retrospective effect. Fazl
Ali, J. had held that the concept of ‘security of state’ was very much
allied to the concept of ‘public order’ and that restrictions on the freedom
of speech and expression could validly be imposed in the interest of
public order. At the same time, this court had cautioned that the two
H
AMISH DEVGAN v. UNION OF INDIA AND OTHERS 245
[SANJIV KHANNA, J.]

penal provisions, read as a whole together with the explanation, aim at A
rendering penal only those activities which would be intended, or have
the tendency, to create disorder or disturbance of public peace by resort
to violence. It was elutriated that criticism and comments on government’s
action in howsoever strong words would not attract penal action as they
would fall within the fundamental right of freedom of speech and
B
expression. The penal provisions catch up when the word, written or
spoken etc., have the pernicious tendency or intention of creating public
disorder. So construed, the two provisions strike the correct balance
between individual fundamental rights and the interest of public order.
For interpretation, the court should not only have regard to the literal
meaning of the words of the statute but take into consideration the C
antecedent history of the legislation, its purpose and the mischief it seeks
to suppress.
33. With reference to Section 505 of the Penal Code, Kedar Nath
Singh observes that each of the three clauses of the Section refer to the
gravamen of the offence as making, publishing or circulating any D
statement, rumour or report – (a) with the intent of causing or which is
likely to cause any member of the Army, Navy or Air Force to mutiny or
otherwise disregard or fail in his duty as such; or (b) cause fear or alarm
to the public or a section of the public which may induce the commission
of an offence against the State or against public tranquillity; or (c) incite
or which is likely to incite one class or community of persons to commit E
an offence against any other class or community. Constituent elements
of each of the three clauses have reference to the direct effect on the
security of the State or public order. Hence, these provisions would not
exceed the bounds of reasonable restriction on the right to freedom of
speech and expression. F
34. We have referred to the judgment in Kedar Nath Singh, for
it interprets clause (2) of Section 505 of the Penal Code and also lays
down principles and guidelines to interpret a penal provision in the context
of the fundamental right to freedom of speech and expression. Secondly,
and more importantly, this decision affirms the view of the Federal Court G
in Niharendu’s case that the expression ‘government established by
law’ has to be distinguished from the ‘persons for the time being engaged
in carrying on the administration’. The former is the visible symbol of
the State, which gets enwrapped when the very existence of the State
will be in jeopardy if the government established by law is subverted.
H
246 SUPREME COURT REPORTS [2020] 14 S.C.R.

A Written or spoken words etc. that bring the State into contempt or hatred
or create disaffection fall within the ambit of the penal statute when the
feeling of disloyalty to the government established by law or enmity to it
imports the idea of tendency to public disorder by use of actual violence
or incitement to violence. Equally, strongly worded expression of
disapprobation of the actions of the government, even elected government,
B
without exciting those feelings which generate the inclination to cause
public disorder by acts of violence would never be penal. Further,
disloyalty to the government by law and comments even in strong terms
on the measures or acts of the government so as to ameliorate the
condition of the people or to secure cancellation or alteration of those
C actions or measures by lawful means, without exciting of those feelings
of enmity and disloyalty which imply excitement to public disorder or
use of force, is not an offence. Another significant advertence is to the
principle that recognises that if two views are possible, the court should
construe the provisions of law penalising ‘hate speech’ in the way that
would make them consistent with the Constitution, and an interpretation
D
that would render them unconstitutional should be avoided. Interpreting
the sections under challenge, the provisions were read as a whole to
make it clear that the aim is to render penal only such activities as would
be intended, or have a tendency, to create public disorder or disturbance
of public peace by resort to violence. As a sequitur it follows that the
E courts should moderate and control the ambit and scope of the penal
provisions to remain within and meet the constitutional mandate.
Interpretation and application that is distant and beyond the superior
command of the permissible constitutional limitation vide clause (2) to
Article 19 is unacceptable.
F 35. The decision in Ramji Lal Modi and the later decision in
Bilal Ahmed Kaloo, which had examined Sections 153A and 505(2) of
the Penal Code, had primarily applied the ‘Bad Tendency test’ as
propounded by the American jurists. In Dr. Ram Manohar Lohia, the
Constitution Bench of five Judges, referring to the words ‘in the interest
of… public order’ in clause (2) to Article 19 had observed that order is
G a basic need in any organised society. It implies orderly state of society
or community in which the citizens can peacefully pursue their normal
activities of life. This is essential as without order there cannot be any
guarantee of other rights. Security of the State, public order and law and
order represent three concentric circles: law and order being the widest,
H within which is the next circle representing public order and the smallest
AMISH DEVGAN v. UNION OF INDIA AND OTHERS 247
[SANJIV KHANNA, J.]

circle represents the security of the State. The phrase ‘security of the A
State’ is nothing less than endangering the foundations of the State or
threatening its overthrow. It includes events that have national significance
or upheavals, such as revolution, civil strife, war, affecting security of
the State but excludes breaches of purely local significance. The phrase
‘minor breaches’ refers to public inconvenience, annoyance or unrest.
B
The phrase ‘in the interest of...public order’, in the context of clause (2)
to Article 19, would mean breaches of purely local significance, embracing
a variety of conduct destroying or menacing public order. Public order,
in view of the history of the amendment is synonymous with public peace,
safety and tranquillity. Further, any restriction to meet the mandate of
clause (2) to Article 19 has to be reasonable, which means that the C
restriction must have proximate and real connection with public order
but not one that is far-fetched, hypothetical, problematic or too remote
in the chain of its relationship with public order. Restriction must not go
in excess of the objective to achieve public order. In practice the
restriction to be reasonable, should not equate the actus with any remote
D
or fanciful connection between a particular act of violence or incitement
to violence. This Court upheld the decision of the Allahabad High Court
striking down Section 3 of the U.P. Special Powers Act, 1932 as the
section within its wide sweep had included any instigation by words,
signs or visible representation not to pay or defer payment of any
extraction or even contractual dues of the government authority, land E
owner, etc. which was treated as an offence. Even innocuous speeches
were prohibited by threat of punishment. It was observed there was no
proximate or even foreseeable connection between such instigation and
the public order sought to be protected. Similarly, the argument of the
State that instigation of a single individual in the circumstances mentioned
F
above may in long run ignite revolutionary movement and destroy public
order was rejected on the ground that fundamental rights cannot be
controlled on such hypothetical and imaginary considerations. The
argument that in a democratic society there is no scope for agitational
approach and the law, if bad, can be modified by democratic process
alone was rejected on the ground that if the same is accepted it would G
destroy the right to freedom of speech. However, what is important is
the finding that public order is synonymous with public safety and
tranquillity, in the sense that the latter terms refer to the former. The
terms refer to absence of disorder, involving breaches of local significance
in contradiction to national upheavals affecting security of the State. Yet
H
248 SUPREME COURT REPORTS [2020] 14 S.C.R.

A they have be serious enough like civil strife and not mere law and order
issues. Further, the ‘proximate nexus test’ in the ‘interest of public order’
should be satisfied.
36. In Madhu Limaye v. Sub-Divisional Magistrate, Monghyr
and Others,70 a seven Judge Constitution Bench of this Court has rejected
B challenge to the constitutional validity of Section 144 and Chapter VIII
of the Code of Criminal Procedure, 1873 holding that the impugned
provisions properly understood were not in excess of the limits laid down
in the Constitution for restricting the freedoms guaranteed under Article
19(1) clauses (a), (b), (c) and (d). The Constitution Bench was required
to interpret clauses (2), (3), (4) and (5) to Article 19 and whether the
C provision under challenge when interpreted would be protected in the
sense that they would fall within the ‘interest of ..public order’ occurring
in clauses (2), (3) and (4) and ‘interest of.. general public’ occurring in
clause (5). Noticing that the phrase ‘in the interest of …public order’,
enacted with retrospective effect vide the First Amendment in 1951, has
D been interpreted as expanding the scope of restrictions, which was earlier
restricted to aggravated activities calculated to endanger the security of
the State only, reference was made to the decision in Dr. Ram Manohar
Lohia which had also quoted judgments of the Supreme Court of the
United States in which it had been held that public order is synonymous
with public peace, safety and tranquillity. Hidayatullah, C.J., however,
E observed that the terms ‘public order’ and ‘public tranquillity’ do overlap
to some extent but are not always synonymous as ‘public tranquillity’ is
a much wider expression and it’s breach may even include things that
cannot be described as public disorder. ‘Public order’ no doubt requires
absence of disturbance of state of serenity in society but goes further
F and means ordre publique, a French term which means absence of
insurrection, riot, turbulence or cry of violence. The expression ‘public
disorder’ includes all acts which endanger the security of the State as
also acts which are comprehended by the expression ordre publique
but not acts which disturb only the serenity of others. For breach of
public order, it is not necessary that the act should endanger the security
G of the State, which is a far stricter test, but would not include every kind
of disturbance of society. Accepting that ‘law and order’ represents the
largest circle within which is the next circle representing ‘public order’
and inside that the smallest circle representing the ‘security of the State’
70
(1970) 3 SCC 746
H
AMISH DEVGAN v. UNION OF INDIA AND OTHERS 249
[SANJIV KHANNA, J.]

is situated, it was observed that State is at the centre and the society A
surrounds it. Disturbances of society can fall under broad spectrum
ranging from disturbance of serenity of life to jeopardy of the State.
Therefore, the journey travels first through public tranquillity then through
public order and lastly to the security of the State. Interpreting the
requisites of Section 144, it was held that it was meant and concerned
B
with power with the State to free the society from the menace of serious
disturbances of grave character, that is to say that the annoyance must
assume sufficiently grave proportions to bring the matter within the
interest of public order. Rejecting the contention that the language of
Section 144 was overbroad, reference was made to Section 188 of the
Penal Code to hold that mere disobedience of the order is not sufficient C
to constitute an offence; there must be in addition obstruction, annoyance,
or danger to human life, health or safety or a riot or an affray for an
offence to me made out under the penal provision. Thus, the offence
under Section 188 of the Penal Code is restricted and confined by the
legislative mandate. The general order under Section 144 is justified on
D
the ground that it may be necessary when number of persons is so large
that distinction between them and general public cannot be made without
the risk mentioned in the section. A general order is thus justified, and if
the action is too general, the order may be questioned by appropriate
remedy provided in the Criminal Code.
37. Recently, this Court in Shreya Singhal, accepting the E
constitutional challenge and striking down Section 66A of the Information
Technology Act, 2000, had differentiated between categories and adopted
the scales test when offensive speech would be criminalised, observing:
“13...There are three concepts which are fundamental in
understanding the reach of this most basic of human rights. The F
first is discussion, the second is advocacy, and the third is incitement.
Mere discussion or even advocacy of a particular cause howsoever
unpopular is at the heart of Article 19(1)(a). It is only when such
discussion or advocacy reaches the level of incitement that Article
19(2) kicks in. It is at this stage that a law may be made curtailing G
the speech or expression that leads inexorably to or tends to cause
public disorder or tends to cause or tends to affect the sovereignty
and integrity of India, the security of the State, friendly relations
with foreign States, etc...”

H
250 SUPREME COURT REPORTS [2020] 14 S.C.R.

A This judgment relies upon the American principles of ‘clear and
present danger’ and ‘imminent lawless action’ wherein to criminalise
speech, proximate nexus should be established, that is, causal linkage
between the words spoken with the ‘clear and present danger’ and
‘imminent lawless action’.
B 38. In Shreya Singhal, this Court has struck down Section 66A
of the Information Technology Act on various grounds, including
unreasonableness of the restriction, absence of requirements of clause
(2) to Article 19, including public order; having chilling effect and over-
breadth; vagueness etc. Referring to the public order aspect of clause
(2) of Article 19 and the reasonable restriction mandate, it was observed
C that they connote limitation on a person in enjoyment of the right, and
should not be arbitrary and excessive in nature, beyond what is required
by the specific clause applicable in the said case. Reference was made
to several judgments, including Chintaman Rao v. State of Madhya
Pradesh,71 State of Madras v. V.G. Row,72 N.B. Khare (Dr.) v. State
D of Delhi73 and Mohammed Faruk v. State of Madhya Pradesh and
Others,74 to hold that the reasonable restriction test must be satisfied
both in substantive and in procedural aspects. This test of reasonableness
should be applied to each individual impugned statute, as no abstract
standard or general pattern of reasonableness is applicable to all cases.
Reasonableness always has reference to evil sought to be remedied and
E requires examination of the proportion of the imposition.
39. In Shreya Singhal, to exposit the public order stipulation in
clause (2) of Article 19, reference was made to Arun Ghosh v. State of
West Bengal75 wherein the test as laid down in Dr. Ram Manohar
Lohia was applied to hold that public order would embrace more of the
F community than law and order. Public order refers to the even tempo of
the life of the community taking the country as a whole or even a specified
locality. Disturbance of public order is to be distinguished from the acts
directed against individuals which do not disturb the society to the extent
of causing general disturbance of public tranquillity. This was explained
G by way of examples:

71
AIR 1951 SC 118
72
AIR 1952 SC 196
73
AIR 1950 SC 211
74
(1969) 1 SCC 853
75
H (1970) 1 SCC 98
AMISH DEVGAN v. UNION OF INDIA AND OTHERS 251
[SANJIV KHANNA, J.]

“3...Take for instance, a man stabs another. People may be shocked A
and even disturbed, but the life of the community keeps moving at
an even tempo, however much one may dislike the act. Take
another case of a town where there is communal tension. A man
stabs a member of the other community. This is an act of a very
different sort. Its implications are deeper and it affects the even
B
tempo of life and public order is jeopardized because the
repercussions of the act embrace large sections of the community
and incite them to make further breaches of the law and order
and to subvert the public order. An act by itself is not determinant
of its own gravity. In its quality it may not differ from another but
in its potentiality it may be very different... C
...It means therefore that the question whether a man has only
committed a breach of law and order or has acted in a manner
likely to cause a disturbance of the public order is a question of
degree and the extent of the reach of the act upon the society.
The French distinguish law and order and public order by D
designating the latter as order publique...”
In Arun Ghosh, it was held that a line of demarcation has to be
drawn between serious and aggravated forms of breaches of public
order which affect life of the community or forms of breaches of public
order which endanger the public interest at large, from minor breaches E
of peace which do not affect the public at large. Acts directed against
individuals which do not disturb the society to the extent of causing a
general disturbance of public tranquillity do not subvert public order, but
are law and order issues. Referring to Dr. Ram Manohar Lohia’s case,
it was observed that similar acts in different context may affect law and
order in one case and public order in the other. It is always the degree of F
harm and its effect on the community. The test which is to be examined
in each case is whether the act would lead to disturbance of the current
life of the community so as to amount to disturbance of public order, or
does it affect merely an individual leaving the tranquillity of the society
undisturbed. The latter is not covered under and restriction must meet G
the test of ordre publique affecting the community in the locality.
40. In Anuradha Bhasin v. Union of India and Others,76 this
Court, while dealing with the suspension of internet services in
the area of Jammu and Kashmir in the background of public order
H
252 SUPREME COURT REPORTS [2020] 14 S.C.R.

A and security concerns, interpreted the term “reasonable” under
clause (2) of Article 19 of the Constitution. It was expounded as
under:
“37. The right provided under Article 19(1) has certain exceptions,
which empower the State to impose reasonable restrictions in
B appropriate cases. The ingredients of Article 19(2) of the
Constitution are that:
(a) The action must be sanctioned by law;
(b) The proposed action must be a reasonable restriction;

C (c) Such restriction must be in furtherance of interests of the
sovereignty and integrity of India, the 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.

D 38. At the outset, the imposition of restriction is qualified by the
term “reasonable” and is limited to situations such as interests of
the sovereignty, integrity, security, friendly relations with the foreign
States, public order, decency or morality or contempt of court,
defamation or incitement to an offence. Reasonability of a
restriction is used in a qualitative, quantitative and relative sense.
E
39. It has been argued by the counsel for the petitioners that the
restrictions under Article 19 of the Constitution cannot mean
complete prohibition. In this context, we may note that the aforesaid
contention cannot be sustained in light of a number of judgments
of this Court wherein the restriction has also been held to include
F complete prohibition in appropriate cases. [Madhya Bharat
Cotton Assn. Ltd. v. Union of India, Narendra Kumar v. Union
of India, State of Maharashtra v. Himmatbhai Narbheram
Rao, Sushila Saw Mill v. State of Orissa, Pratap Pharma
(P) Ltd. v. Union of India and Dharam Dutt v. Union of India.]
G 40. The study of the aforesaid case law points to three propositions
which emerge with respect to Article 19(2) of the Constitution.
(i) Restriction on free speech and expression may include cases
of prohibition. (ii) There should not be excessive burden on free
speech even if a complete prohibition is imposed, and the
H Government has to justify imposition of such prohibition and explain
AMISH DEVGAN v. UNION OF INDIA AND OTHERS 253
[SANJIV KHANNA, J.]

as to why lesser alternatives would be inadequate. (iii) Whether A
a restriction amounts to a complete prohibition is a question of
fact, which is required to be determined by the Court with regard
to the facts and circumstances of each case. [Refer to State of
Gujarat v. Mirzapur Moti Kureshi Kassab Jamat]
41. The second prong of the test, wherein this Court is required B
to find whether the imposed restriction/ prohibition was least
intrusive, brings us to the question of balancing and proportionality.
These concepts are not a new formulation under the Constitution.
In various parts of the Constitution, this Court has taken a balancing
approach to harmonise two competing rights. In Minerva Mills
Ltd. v. Union of India and Sanjeev Coke Mfg. Co. v. Bharat C
Coking Coal Ltd.], this Court has already applied the balancing
approach with respect to fundamental rights and the directive
principles of State policy.”
41. Anuradha Bhasin’s case refers to the principle of
proportionality as formulated by this Court in Modern Dental College D
and Research Centre and Others v. State of Madhya Pradesh and
Others77 in the following words:
“...a limitation of a constitutional right will be constitutionality
permissible if: (i) it is designated for a proper purpose; (ii) the
measures undertaken to effectuate such a limitation are rationally E
connected to the fulfilment of that purpose; (iii) the measures
undertaken are necessary in that there are no alternative measures
that may similarly achieve that same purpose with a lesser degree
of limitation; and finally (iv) there needs to be a proper relation
(‘proportionality stricto sensu’ or ‘balancing’) between the F
importance of achieving the proper purpose and the social
importance of preventing the limitation on the constitutional right.”
Subsequently, the principle was reiterated in the Aadhaar judgment
reported as Justice K. S. Puttasamy v. Union of India (2).78 We need
not elaborate on this principle in view of the limited controversy involved G
in the present case, albeit the formulation recognises the benefit and
need for least intrusive measure when it comes to curtailment of
fundamental rights and for this purpose the court can examine the
77
(2016) 7 SCC 353
78
(2017) 10 SCC 1
H
254 SUPREME COURT REPORTS [2020] 14 S.C.R.

A reasonableness of the measures undertaken and whether they are
necessary, in that there are no alternatives measures that can achieve
the same purpose with a lesser degree of restriction. Secondly, there
has to be proper proportionality or balance between the importance of
achieving the proper measure and social importance of preventing the
limitation on the constitutional right.
B
42. The expression ‘reasonable restriction’ has been elucidated in
numerous decisions which have been quoted in Subramanian Swamy
v. Union of India and Others79 to connote that the restriction cannot
be arbitrary or excessive and should possess a direct and proximate
nexus with the object sought to be achieved. Sufficient for our purpose
C would be reproduction of the observations of P.N. Bhagwati, J. (as His
Lordship then was) in Maneka Gandhi v. Union of India80 wherein he
had referred to the authority in Rustom Cowasjee Cooper v. Union of
India81 and Bennett Coleman & Co. v. Union of India,82 to observe:
“20. It may be recalled that the test formulated in R.C. Cooper
D case merely refers to “direct operation” or ‘direct consequence
and effect’ of the State action on the fundamental right of the
petitioner and does not use the word “inevitable” in this connection.
But there can be no doubt, on a reading of the relevant observations
of Shah, J., that such was the test really intended to be laid down
E by the Court in that case. If the test were merely of direct or
indirect effect, it would be an open-ended concept and in the
absence of operational criteria for judging “directness”, it would
give the Court an unquantitiable discretion to decide whether in a
given case a consequence or effect is direct or not. Some other
concept-vehicle would be needed to quantify the extent of
F directness or indirectness in order to apply the test. And that is
supplied by the criterion of “inevitable” consequence or effect
adumbrated in the Express Newspapers case. This criterion helps
to quantify the extent of directness necessary to constitute
infringement of a fundamental right. Now, if the effect of State
G action on fundamental right is direct and inevitable, then a fortiori
it must be presumed to have been intended by the authority taking

79
(2016) 7 SCC 221
80
(1978) 1 SCC 248
81
(1970) 2 SCC 298
82
(1972) 2 SCC 788
H
AMISH DEVGAN v. UNION OF INDIA AND OTHERS 255
[SANJIV KHANNA, J.]

the action and hence this doctrine of direct and inevitable effect A
has been described by some jurists as the doctrine of intended
and real effect.”
43. The decisions in Rustom Cowasjee Cooper and Maneka
Gandhi are also relevant for our purpose as they have considered the
interrelation between the rights enshrined in Article 21, Article 14 and B
Article 19 and had made a departure from the majority view in A.K.
Gopalan v. State of Madras83 to hold that these freedoms contained in
Part III shade and merge into each other and are not watertight
compartments. They weave a pattern of guarantees on the basic structure
of human rights and impose negative obligations on the State not to
encroach on individual liberty in its different dimensions. The rights under C
Part-III are wide ranging and comprehensive, though they have been
categorised under different heads, namely, right to equality, right to
freedom of expression and speech, right against exploitation, right to
freedom of religion, cultural and educational rights, and right to
constitutional remedies. Each freedom has a different dimension and D
merely because the limits of interference with one freedom are satisfied,
the law is not free from the necessity to meet the challenge of another
guaranteed freedom. Secondly, in Maneka Gandhi, it was held that the
expression ‘personal liberty’ in Article 21 is of the widest amplitude and
it covers a variety of rights which go on to constitute the personal liberty
of a man, though some of them have been raised to the status of distinct E
fundamental rights and given additional protection under Article 19. Article
21 does not exclude Article 19 or vice-versa, or for that matter the right
to equality under Article 14 of the Constitution. Thus, Part III of the
Constitution is expansive and its connotative sense carries a collection
or bouquet of highly cherished rights. In Subramanian Swamy, this F
Court referred to Charu Khurana and Others v. Union of India and
Others84 wherein it has been ruled that dignity is the quintessential quality
of personality and a basic constituent along with honour and reputation
of the rights guaranteed and protected under Article 21. Dignity is a part
of the individual rights that form the fundamental fulcrum of collective
harmony and interest of a society. While right to speech and expression G
is absolutely sacrosanct in the sense that it is essential for individual
growth and progress of democracy which recognises voice of dissent,
tolerance for discordant notes and acceptance of different voices, albeit
83
AIR 1950 SC 27
84
(2015) 1 SCC 192 H
256 SUPREME COURT REPORTS [2020] 14 S.C.R.

A the right to equality under Article 14 and right to dignity as a part of
Article 21 have their own significance. The aforesaid proposition has
been reiterated by Dr. D.Y. Chandrachud, J., in India Young Lawyers
Association and Others (Sabarimala Temple, In RE.) v. State of
Kerala and Others,85 which decision refers to the four precepts which
emerge from the Preamble, namely, justice, in its social, economic and
B
political dimensions; individual liberty in the matter of thought, expression,
belief, faith and worship; equality of status and opportunity amongst all
citizens; and sense of fraternity amongst all citizens that assures the
dignity of human life. Individual dignity can be achieved in a regime
which recognises equality with other citizens regardless of one’s religious
C beliefs or the group to which one belongs. Religious beliefs and faiths
ensure wider acceptance of human dignity and liberty, but when conflict
arises between the two, the quest for human dignity, liberty and equality
must prevail. Constitutional interpretation must bring a sense of equilibrium-
a balance, so that read individually and together, the provisions of the
Constitution exist in a contemporaneous accord. Thus, effort should be
D
made to have synchrony between different parts of the Constitution and
different rights should be interpreted together so that they exist in harmony.
Freedoms elaborated in Part III are exercised within the society which
are networked. Freedoms, therefore, have linkages which cannot be
ignored. In Subramanian Swamy, this Court had referred to a
E compendium of judgments dwelling on balancing of fundamental rights
when the right of a citizen comes in conflict with a different fundamental
right also granted by the Constitution as each citizen is entitled to enjoy
each and every one of the freedoms together and the Constitution does
not prefer one freedom to another. In Ram Jethmalani and Others v.
Union of India and Others,86 this Court has observed that rights of
F
citizens under Article 19(1) have to be balanced against the rights of
citizens and persons under Article 21 and the latter rights cannot be
sacrificed as this would lead to detrimental consequences and even
anarchy. Constitutional rights no doubt very important, possibly are not
made absolute as they may come into conflict with each other and when
G competing they have to be qualified and balanced. In Noise Pollution
(V), In Re.87 it was observed that Article 19(1)(a) cannot be pressed
into service for defeating the fundamental right guaranteed by Article 21
85
(2019) 11 SCC 1
86
(2011) 8 SCC 1
87
H (2005) 5 SCC 733
AMISH DEVGAN v. UNION OF INDIA AND OTHERS 257
[SANJIV KHANNA, J.]

as if one claims to right to speech, the others have the right to listen or A
decline to listen. A person speaking cannot violate the rights of others of
peaceful, comfortable and pollution free right guaranteed by Article 21.
44. Right to equality enshrined in Article 14 is recognition that the
principle of equality is inherent in the rule of law. In the positive sense, it
means absence of any privilege for particular individuals and in the B
negative sense, no one can be discriminated against; and anybody and
everybody should be treated as equals. The latter is the essence and
core of right to equality and imposes obligation on the State to take
necessary steps so that every individual is given equal respect and enjoys
dignity as others, irrespective of caste, creed, religion, identity, sexual
preference etc. Right to equality is embodied not only in Article 14, but C
also finds different manifestations in Articles 15 to 18 of Part III, and
Articles 38, 39, 39A, 41 and 46 of Part IV. Thus, right to equality has
many facets, and is dynamic and evolving.88
45. It is not only the Preamble and Articles 14, 21 and others
referred to above which affirms the right to dignity of the individual. D
Clause (e) to Article 51A, which incorporates fundamental duties, states
that it will be the obligation of every citizen to promote harmony and the
spirit of common brotherhood amongst all the people of India, transcending
religious, linguistic and regional or sectional diversities and to renounce
practices derogatory to the dignity of women. Clause (f) states that we E
must value and preserve the rich heritage of our composite culture.
46. At this stage, it is necessary to clarify what is meant by the
expression ‘dignity’ in the context of ‘hate speech’ – for an expansive
meaning, if given, would repress and impede freedom to express views,
opine and challenge beliefs, ideas and acts. Dignity, in the context of F
criminalisation of speech with which we are concerned, refers to a
person’s basic entitlement as a member of a society in good standing, his
status as a social equal and as bearer of human rights and constitutional
entitlements.89 It gives assurance of participatory equality in inter-personal
relationships between the citizens, and between the State and the citizens,
and thereby fosters self-worth.90 Dignity in this sense does not refer to G
88
Indira Sawhney v. Union of India, (1992) Supp. 3 SCC 217 and Amita v. Union of
India, (2005) 13 SCC 721
89
See – Pat Eatock v. Andrew Bolt
90
O’Neill at (160) – (161) and Hill v. Church of Scientology of Toronto, (1995) 2 S.C.R.
1130 (117) and (120) H
258 SUPREME COURT REPORTS [2020] 14 S.C.R.

A any particular level of honour or esteem as an individual, as in the case
of defamation which is individualistic. The Supreme Court of the United
States of America in Beauharnais v. Illinois,91 while upholding
conviction for hate speech, had emphasised that such speech should
amount to group defamation which though analogous to individual
defamation has been traditionally excluded from free speech protection
B
in America. Loss of dignity and self- worth of the targeted group members
contributes to disharmony amongst groups, erodes tolerance and open-
mindedness which are a must for multi-cultural society committed to the
idea of equality. It affects an individual as a member of a group. It is
however necessary that at least two groups or communities must be
C involved; merely referring to feelings of one community or group without
any reference to any other community or group does not attract the
‘hate speech’ definition. Manzar Sayeed Khan, taking note of the
observations in Bilal Ahmad Kaloo, records that common features of
Sections 153A and 505(2) being promotion of feeling of enmity, hatred
or ill-will ‘between different’ religious or racial or linguistic or regional
D
groups or castes or communities, involvement of at least two groups or
communities is necessary. Further, merely inciting the feeling of one
community or group without any reference to any other community or
group would not attract either provision. Definition of ‘hate speech’ as
expounded by Andrew F. Sellars prescribes that hate speech should
E target a group or an individual as they relate to a group.
47. Preamble to the Constitution consciously puts together
fraternity assuring dignity of the individual and the unity and integrity of
the nation. Dignity of individual and unity and integrity of the nation are
linked, one in the form of rights of individuals and other in the form of
F individual’s obligation to others to ensure unity and integrity of the nation.
The unity and integrity of the nation cannot be overlooked and slighted,
as the acts that ‘promote’ or are ‘likely’ to ‘promote’ divisiveness,
alienation and schematism do directly and indirectly impinge on the
diversity and pluralism, and when they are with the objective and intent
to cause public disorder or to demean dignity of the targeted groups,
G they have to be dealt with as per law. The purpose is not to curtail right
to expression and speech, albeit not gloss over specific egregious threats
to public disorder and in particular the unity and integrity of the nation.
Such threats not only insidiously weaken virtue and superiority of diversity,
but cut-back and lead to demands depending on the context and occasion,
H 91
343 U.S. 250 (1952)
AMISH DEVGAN v. UNION OF INDIA AND OTHERS 259
[SANJIV KHANNA, J.]

for suppression of freedom to express and speak on the ground of A
reasonableness. Freedom and rights cannot extend to create public
disorder or armour those who challenge integrity and unity of the country
or promote and incite violence. Without acceptable public order, freedom
to speak and express is challenged and would get restricted for the
common masses and law-abiding citizens. This invariably leads to State
B
response and, therefore, those who indulge in promotion and incitement
of violence to challenge unity and integrity of the nation or public disorder
tend to trample upon liberty and freedom of others.
48. Before referring to provisions of the Penal Code, we would
like to refer to an article by Alice E. Marwick and Ross Miller of Fordham
University, New York (USA),92 elucidating on three distinct elements C
that legislatures and courts can use to define and identify ‘hate speech’,
namely – content-based element, intent-based element and harm-based
element (or impact-based element). The content-based element involves
open use of words and phrases generally considered to be offensive to a
particular community and objectively offensive to the society. It can D
include use of certain symbols and iconography. By applying objective
standards, one knows or has reasonable grounds to know that the content
would allow anger, alarm or resentment in others on the basis of race,
colour, creed, religion or gender. The intent-based element of ‘hate speech’
requires the speaker’s message to intend only to promote hatred, violence
or resentment against a particular class or group without communicating E
any legitimate message. This requires subjective intent on the part of
the speaker to target the group or person associated with the class/
group. The harm or impact-based element refers to the consequences
of the ‘hate speech’, that is, harm to the victim which can be violent or
such as loss of self- esteem, economic or social subordination, physical F
and mental stress, silencing of the victim and effective exclusion from
the political arena. Nevertheless, the three elements are not watertight
silos and do overlap and are interconnected and linked. Only when they
are present that they produce structural continuity to constitute ‘hate
speech’.
G
49. On the aspect of content, Ramesh states that the effect of
the words must be judged from the standard of reasonable, strongminded,
firm and courageous men and not by those who are weak and ones with
vacillating minds, nor of those who scent danger in every hostile point of
92
‘Online harassment, defamation, and hateful speech: A primer of the legal landscape’ H
260 SUPREME COURT REPORTS [2020] 14 S.C.R.

A view. The test is, as they say in English Law, – ‘the man on the top of
a Clapham omnibus’. Therefore, to ensure maximisation of free speech
and not create ‘free speaker’s burden’, the assessment should be from
the perspective of the top of the reasonable member of the public,
excluding and disregarding sensitive, emotional and atypical. It is almost
akin or marginally lower than the prudent man’s test. The test of
B
reasonableness involves recognition of boundaries within which
reasonable responses will fall, and not identification of a finite number of
acceptable reasonable responses. Further, this does not mean exclusion
of particular circumstances as frequently different persons acting
reasonably will respond in different ways in the context and
C circumstances. This means taking into account peculiarities of the
situation and occasion and whether the group is likely to get offended.
At the same time, a tolerant society is entitled to expect tolerance as
they are bound to extend to others.
50. Richard Delgado93 has proposed a definition of ‘hate speech’
D as language that was intended to demean a group which a reasonable
person would recognise as a ‘racial insult’. Mari J. Matsuda94 has
referred to ‘hate speech’ as a message of racial inferiority, prosecutorial,
hateful and degraded. Kenneth Ward95 has analysed ‘hate speech’ as a
form of expression, through which the speaker primarily intends to vilify,
humiliate or incite hatred against their targets. As explained below,
E ‘content’ has relation with the subject-matter, but is not synonymous
with the subject-matter. ‘Content’ has more to do with the expression,
language and message which should be to vilify, demean and incite
psychosocial hatred or physical violence against the targeted group.
51. The ‘context’, as indicated above, has a certain key variable,
F namely, ‘who’ and ‘what’ is involved and ‘where’ and the ‘occasion,
time and under what circumstances’ the case arises. The ‘who’ is always
plural for it encompasses the speaker who utters the statement that
constitutes ‘hate speech’ and also the audience to whom the statement
is addressed which includes both the target and the others. Variable
G 93
‘Words that Wound: A tort Action for Racial Insults, Epithets, and Name-Calling’, 17
Harv. C.R.- C.L.L.rev. 133 (1982)
94
‘Public Response to Racist Speech: Considering the Victim’s Story’, 87 Mich.L.Rev.
2320 (1989)
95
‘Free Speech and the Development of Liberal Virtues: An Examination of the
Controversies Involving Flag Burning and Hate Speech’, 52 U.Miami K. Rev. 733
H (1998)
AMISH DEVGAN v. UNION OF INDIA AND OTHERS 261
[SANJIV KHANNA, J.]

context review recognises that all speeches are not alike. This is not A
only because of group affiliations, but in the context of dominant group
hate speech against a vulnerable and discriminated group, and also the
impact of hate speech depends on the person who has uttered the words.96
The variable recognises that a speech by ‘a person of influence’ such as
a top government or executive functionary, opposition leader, political or
B
social leader of following, or a credible anchor on a T.V. show carries a
far more credibility and impact than a statement made by a common
person on the street. Latter may be driven by anger, emotions, wrong
perceptions or mis-information. This may affect their intent. Impact of
their speech would be mere indifference, meet correction/criticism by
peers, or sometimes negligible to warrant attention and hold that they C
were likely to incite or had attempted to promote hatred, enmity etc.
between different religious, racial, language or regional groups. Further,
certain categories of speakers may be granted a degree of latitude in
terms of the State response to their speech. Communities with a history
of deprivation, oppression, and persecution may sometimes speak in
D
relation to their lived experiences, resulting in the words and tone being
harsher and more critical than usual. Their historical experience often
comes to be accepted by the society as the rule, resulting in their words
losing the gravity that they otherwise deserve. In such a situation, it is
likely for persons from these communities to reject the tenet of civility,
as polemical speech and symbols that capture the emotional loading can E
play a strong role in mobilising.97 Such speech should be viewed not
from the position of a person of privilege or a community without such a
historical experience, but rather, the courts should be more circumspect
when penalising such speech. This is recognition of the denial of dignity
in the past, and the effort should be reconciliatory. Nevertheless, such
F
speech should not provoke and ‘incite’ – as distinguished from discussion
or advocacy – ‘hatred’ and violence towards the targeted group.
Likelihood or similar statutory mandate to violence, public disorder or
‘hatred’ when satisfied would result in penal action as per law. Every
right and indulgence has a limit. Further, when the offending act creates
public disorder and violence, whether alone or with others, then the aspect G

96
Hate Speech in Constitutional Jurisprudence: A Comparative Analysis by Michel
Rosenfeld, 24 Cardozo L. Rev. 1523 2002-2003
97
Myra Mrx Ferree, William A. Gamson, Jurgen Gerhards and Dieter Rucht, ‘Four
Models of the Public Sphere in Modern Democracies,’ published in THEORY AND
SOCIETY, Vol. 31, No. 3 (June, 2002), pp. 289-324 H
262 SUPREME COURT REPORTS [2020] 14 S.C.R.

A of ‘who’ and question of indulgence would lose significance and may be
of little consequence.
52. Persons of influence, keeping in view their reach, impact and
authority they yield on general public or the specific class to which they
belong, owe a duty and have to be more responsible. They are expected
B to know and perceive the meaning conveyed by the words spoken or
written, including the possible meaning that is likely to be conveyed.
With experience and knowledge, they are expected to have a higher
level of communication skills. It is reasonable to hold that they would be
careful in using the words that convey their intent. The reasonable-man’s
test would always take into consideration the maker. In other words, the
C expression ‘reasonable man’ would take into account the impact a
particular person would have and accordingly apply the standard, just
like we substitute the reasonable man’s test to that of the reasonable
professional when we apply the test of professional negligence. 98 This is
not to say that persons of influence like journalists do not enjoy the same
D freedom of speech and expression as other citizens, as this would be
grossly incorrect understanding of what has been stated above. This is
not to dilute satisfaction of the three elements, albeit to accept importance
of ‘who’ when we examine ‘harm or impact element’ and in a given
case even ‘intent’ and/or ‘content element’.
E 53. Further, the law of ‘hate speech’ recognises that all speakers
are entitled to ‘good faith’ and ‘(no)-legitimate purpose’ protection. ‘Good
faith’ means that the conduct should display fidelity as well as a
conscientious approach in honouring the values that tend to minimise
insult, humiliation or intimidation. The latter being objective, whereas the
former is subjective. The important requirement of ‘good faith’ is that
F the person must exercise prudence, caution and diligence. It requires
due care to avoid or minimise consequences. ‘Good faith’ or ‘no-legitimate
purpose’ exceptions would apply with greater rigour to protect any genuine
with a practice accepted as proper by a reasonable body of medical
men skilled in that particular art...Putting it the other way round, a doctor
G is not negligent, if he is acting in accordance with such a practice, merely
because there is a body of opinion that takes a contrary view.” academic,
artistic, religious or scientific purpose, or for that matter any purpose
that is in public interest, or publication of a fair and accurate report of
98
In Bolam v. Friern Hospital Management Committee, [1957] 2 All E.R. 118, it was
H observed: “A doctor is not guilty of negligence if he has acted in accordance
AMISH DEVGAN v. UNION OF INDIA AND OTHERS 263
[SANJIV KHANNA, J.]

any event or matter of public interest.99 Such works would get protection A
when they were not undertaken with a specific intent to cause harm.
These are important and significant safeguards. They highlight importance
of intention in ‘hate speech’ adjudication. ‘Hate speech’ has no redeeming
or legitimate purpose other than hatred towards a particular group. A
publication which contains unnecessary asides which appear to have no
B
real purpose other than to disparage will tend to evidence that the
publications were written with a mala fide intention. However, opinions
may not reflect mala fide intention.
54. The present case, it is stated, does not relate to ‘hate speech’
causally connected with the harm of endangering security of the State,
but with ‘hate speech’ in the context of clauses (a) and (b) to sub- C
section (1) of Section 153A, Section 295A and sub-section (2) to Section
505 of the Penal Code. In this context, it is necessary to draw a distinction
between ‘free speech’ which includes the right to comment, favour or
criticise government policies; and ‘hate speech’ creating or spreading
hatred against a targeted community or group. The former is primarily D
concerned with political, social and economic issues and policy matters,
the latter would not primarily focus on the subject matter but on the
substance of the message which is to cause humiliation and alienation of
the targeted group. The object of criminalising the latter type of speech
is to protect the dignity (as explained above) and to ensure political and
social equality between different identities and groups regardless of caste, E
creed, religion, sex, gender identity, sexual orientation, linguistic preference
etc. Freedom to express and speak is the most important condition for
political democracy. Law and policies are not democratic unless they
have been made and subjected to democratic process including
questioning and criticism. Dissent and criticism of the elected F
government’s policy, when puissant, deceptive or even false would be
ethically wrong, but would not invite penal action. Elected representatives
in power have the right to respond and dispel suspicion. The ‘market
place of ideas’ and ‘pursuit of truth’ principle are fully applicable.
Government should be left out from adjudicating what is true or false,
good or bad, valid or invalid as these aspects should be left for open G
discussion in the public domain. This justification is also premised on the
conviction that freedom of speech serves an indispensable function in
democratic governance without which the citizens cannot successfully

99
Racial and Religious Tolerance, 2001 (Victoria, Australia) H
264 SUPREME COURT REPORTS [2020] 14 S.C.R.

A carry out the task to convey and receive ideas. Political speech relating
to government policies requires greater protection for preservation and
promotion of democracy. Falsity of the accusation would not be sufficient
to constitute criminal offence of ‘hate speech’. The Constitutional Bench
decision of this Court in Kedar Nath Singh and the subsequent decisions
have clearly and uniformly held that there is difference between
B
‘government established by law’ and ‘persons for the time being engaged
in carrying on administration’ and that comment or criticism of the
government action in howsoever strong words must be protected and
cannot be a ground to take penal action unless the words written or
spoken, etc. have pernicious tendency or intention of creating public
C disorder. Without exciting those feelings which generate inclination to
cause public disorder by acts of violence, political views and criticism
cannot be made subject matter of penal action. Reference to later decision
in Arun Ghosh drawing distinction between serious and aggravated from
of breaches of public order that endanger public peace and minor
breaches that do not affect public at large would be apposite. In
D
consonance with the constitutional mandate of reasonable restriction
and doctrine of proportionality in facts of each case it has to be ascertained
whether the act meets the top of Clapham omnibus test and whether
the act was ‘likely’ to lead to disturbance of the current life of the
community so as to amount to disturbance of public order; or it may
E affect an individual or some individuals leaving the tranquillity of the
society undisturbed. The latter and acts excluded on application of the
top of Clapham omnibus test are not covered. Therefore, anti-
democratic speech in general and political extremist speech in particular,
which has no useful purpose, if and only when in the nature of incitement
to violence that ‘creates’, or is ‘likely to create’ or ‘promotes’ or is
F
‘likely to promote’ public disorder, would not be protected.
55. Sometimes, difficulty may arise and the courts and authorities
would have to exercise discernment and caution in deciding whether the
‘content’ is a political or policy comment, or creates or spreads hatred
against the targeted group or community. This is of importance and
G significance as overlap is possible and principles have to be evolved to
distinguish. We would refer to one example to illustrate the difference.
Proponents of affirmative action and those opposing it, are perfectly and
equally entitled to raise their concerns and even criticise the policies
adopted even when sanctioned by a statute or meeting constitutional
H
AMISH DEVGAN v. UNION OF INDIA AND OTHERS 265
[SANJIV KHANNA, J.]

scrutiny, without any fear or concern that they would be prosecuted or A
penalised. However, penal action would be justified when the speech
proceeds beyond and is of the nature which defames, stigmatises and
insults the targeted group provoking violence or psychosocial hatred.
The ‘content’ should reflect hate which tends to vilify, humiliate and
incite hatred or violence against the target group based upon identity of
B
the group beyond and besides the subject matter.
56. Our observations are not to say that persons of influence or
even common people should fear the threat of reprisal and prosecution,
if they discuss and speak about controversial and sensitive topics relating
to religion, caste, creed, etc. Such debates and right to express one’s
views is a protected and cherished right in our democracy. Participants C
in such discussions can express divergent and sometimes extreme views,
but should not be considered as ‘hate speech’ by itself, as subscribing to
such a view would stifle all legitimate discussions and debates in public
domain. Many a times, such discussions and debates help in understanding
different view-points and bridge the gap. Question is primarily one of D
intent and purpose. Accordingly, ‘good faith’ and ‘no legitimate purpose’
exceptions would apply when applicable.
57. On the aspect of truth or true facts, reference can be made to
the decision of this Court in K.A. Abbas, which pertained to the
documentary called ‘A Tale of Four Cities’ portraying contrast between E
the lives of rich and poor in the four principal cities of the country. The
challenge was to the grant of certificate for exhibition restricted to adults.
It was observed that audience in India can be expected to view with
equanimity the different historical facts and stories. There is no bar in
showing carnage or bloodshed which have historical value and depiction
of such scenes as the sack of Delhi by Nadir Shah may be permissible, F
if handled delicately as a part of an artistic portrayal of confrontation
with Mohd. Shah Rangila. Clearly, the restrictions were not to be reduced
to the level where the protection to the least capable and the most
deprived amongst us would be applicable. In Ebrahim Suleiman Sait
v. M. C. Mohammed and Another,100 it was observed that speaking G
the truth was not an answer to the charge of corrupt practice and what
was relevant was whether the speech had promoted or had sought to
promote feelings of enmity or hatred. The likelihood must be judged
from healthy and reasonable standard thereby accepting the position
100
(1980) 1 SCC 398 H
266 SUPREME COURT REPORTS [2020] 14 S.C.R.

A that historical truth may be a relevant and important factor. However,
the historical truth must be depicted without in any way disclosing or
encouraging hatred or enmity between different classes or communities.
In Lalai Singh Yadav and Another v. State of Uttar Pradesh,101 the
Allahabad High Court had observed that the book written by Dr. B. R.
Ambedkar throwing light on the oppression and exploitation of Dalits
B
and suggesting conversion to Buddhism was couched in a restrained
language and did not amount to an offence. Rational criticism of religious
tenets, is acceptable as legitimate criticism, is not an offence for no
reasonable person of normal susceptibilities would object to it. In
Ramesh, challenge to the serial ‘Tamas’ was rejected on the ground
C that it was an instructive serial revealing an evil facet of history within
permissible extent of examination even if it depicted pre-partition
communal tension and violence. A hurt, which is a product of a benevolent
intent, may incite negative attitudes to the victim but would fall short of
criminal hurt, i.e. hatred. Watching the bloodshed that accompanied
partition, the average person will “learn from the mistakes of the past
D
and realise the machinations of the fundamentalists and will not perhaps
commit those mistakes again”. Knowledge of tragic experiences of the
past would help “fashion our present in a rational and reasonable manner
and view our future with wisdom and care”. Quoting Lord Morley,
Mukharji, J. noted in paragraph 20:
E “20...It has been said by Lord Morley in “On Compromise” that
it makes all the difference in the world whether you put truth in
the first place or in the second place. It is true that a writer or a
preacher should cling to truth and right, if the very heavens fall.
This is a universally accepted basis. Yet in practice, all schools
F alike are forced to admit the necessity of a measure of
accommodation in the very interests of truth itself. Fanatic is a
name of such ill-repute, exactly because one who deserves to be
so called injures good causes by refusing timely and harmless
concession; by irritating prejudices that a wiser way of urging his
own opinion might have turned aside; by making no allowances,
G respecting no motives, and recognising none of those qualifying
principles that are nothing less than necessary to make his own
principle true and fitting in a given society. Judged by all standards
of a common man’s point of view of presenting history with a
lesson in this film, these boundaries appear to us could (sic to)
H 101
1971 Cri LJ 1773 (FB) (Allahabad)
AMISH DEVGAN v. UNION OF INDIA AND OTHERS 267
[SANJIV KHANNA, J.]

have been kept in mind. This is also the lesson of history that A
naked truth in all times will not be beneficial but truth in its proper
light indicating the evils and the consequences of those evils is
instructive and that message is there in “Tamas” according to the
views expressed by the two learned Judges of the High Court.
They viewed it from an average, healthy and commonsense point
B
of view. That is the yardstick. There cannot be any apprehension
that it is likely to affect public order or it is likely to incite into (sic)
the commission of any offence. On the other hand, it is more
likely that it will prevent incitement to such offences in future by
extremists and fundamentalists.”
It should also be noted that contrary to the positivist claim of C
singularity and absoluteness of ‘truth’, it may, in actuality, be a subjective
element, making it one person’s relative truth over another’s. Cultural
value system, historical experiences, lived realities of social systems and
hierarchies – all these are determinants in how an individual perceives
the truth to be. George Bernard Shaw has said that our whole theory of D
freedom of speech and opinion for all citizens rests not on the assumption
that everybody was right, but on the certainty that everybody was wrong
on some point on which somebody else was right, so that there was a
public danger in allowing anybody to go unheard.102 Many so-called truths
have been rectified and corrected because they were disputed
scientifically or economically, socially and politically. One should not rule E
out possibility of divergency between truth and popular belief or even
situations that are described as epistemological problem of the ‘post
truth’ era, which is not that people do not value truth, but some may
believe and accept falsehoods.103 Nevertheless, in many ways, free
speech has empowered those who were marginalised and discriminated F
and thus it would be wholly incorrect and a mistake to assume that free
speech is an elite concept and indulgence.
58. On the question of harm, the legislations refer to actual or
sometimes likely or anticipated danger, of which the latter must not be
remote, conjectural or farfetched. It should have proximate and direct G
nexus with the expression ‘public order’ etc. Otherwise, the commitment
to freedom of expression and speech would be suppressed without the
102
George Bernard Shaw, Socialism off Millionaires, 16 (1901)
103
Joseph Blocher, ‘Free Speech and Justified True Belief’, Harvard Law Review,
Vol. 133, No.2, December 2019. H
268 SUPREME COURT REPORTS [2020] 14 S.C.R.

A community interest being in danger. In the Indian context, the tests of
‘clear and present danger’ or ‘imminent lawless action’ unlike United
States, are identical as has been enunciated in the case of Shreya
Singhal. The need to establish proximity and causal connection between
the speech with the consequences has been dealt with and explained in
Dr. Ram Manohar Lohia in great detail. In the case of actual occurrence
B
of public disorder, the cause and effect relationship may be established
by leading evidence showing the relationship between the ‘speech’ and
the resultant ‘public disorder’. In other cases where public disorder has
not occurred due to police, third party intervention, or otherwise, the
‘clear and present danger’ or ‘imminent lawless action’ tests are of
C relevance and importance. ‘Freedom and rational’ dictum should be
applied in absence of actual violence, public disorder etc. Further, when
reference is to likelihood, the chance is said to be likely when the possibility
is reasonably or rather fairly certain, i.e. fairly certain to occur than not.
Therefore, in absence of actual violence, public disorder, etc., something
more than words, in the form of ‘clear and present danger’ or ‘imminent
D
lawless action’, either by the maker or by others at the maker’s instigation
is required. This aspect has been examined subsequently while
interpreting the penal provisions.
59. We have repeatedly referred to the word ‘tolerance’, and
noted that the expression ‘who’ refers to both the speaker and the targeted
E audience; and will subsequently refer to the ratio of the Calcutta High
Court judgment in P.K. Chakravarty v. The King,104 that something
must be known of the kind of people to whom the words are addressed.
Similarly, in paragraph 49, we have observed that a tolerant society is
entitled to expect tolerance as they are bound to extend to others. The
F expression ‘tolerance’ is, therefore, important, yet defining it is
problematic as it has different meanings. We need not examine the
philosophies or the meanings in detail, and would prefer to quote Article
1 from the Declaration of Principles of Tolerance by the Member States
of the United Nations Educational, Scientific and Cultural Organisation
adopted in its meeting in Paris at the 28th session of the General
G Conference, which reads as under:
“Article 1 - Meaning of tolerance
1.1 Tolerance is respect, acceptance and appreciation of the rich
diversity of our world’s cultures, our forms of expression and ways
H 104
AIR 1926 Cal. 1133
AMISH DEVGAN v. UNION OF INDIA AND OTHERS 269
[SANJIV KHANNA, J.]

of being human. It is fostered by knowledge, openness, A
communication, and freedom of thought, conscience and belief.
Tolerance is harmony in difference. It is not only a moral duty, it is
also a political and legal requirement. Tolerance, the virtue that
makes peace possible, contributes to the replacement of the culture
of war by a culture of peace.
B
1.2 Tolerance is not concession, condescension or indulgence.
Tolerance is, above all, an active attitude prompted by recognition
of the universal human rights and fundamental freedoms of others.
In no circumstance can it be used to justify infringements of these
fundamental values. Tolerance is to be exercised by individuals,
groups and States. C

1.3 Tolerance is the responsibility that upholds human rights,
pluralism (including cultural pluralism), democracy and the rule of
law. It involves the rejection of dogmatism and absolutism and
affirms the standards set out in international human rights
instruments. D

1.4 Consistent with respect for human rights, the practice of
tolerance does not mean toleration of social injustice or the
abandonment or weakening of one’s convictions. It means that
one is free to adhere to one’s own convictions and accepts that
others adhere to theirs. It means accepting the fact that human E
beings, naturally diverse in their appearance, situation, speech,
behaviour and values, have the right to live in peace and to be as
they are. It also means that one’s views are not to be imposed on
others.”
There are multiple justifications for ‘tolerance’, which include F
respect for autonomy; a general commitment to pacifism; concern for
other virtues such as kindness and generosity; pedagogical concerns; a
desire for reciprocity; and a sense of modesty about one’s ability to
judge the beliefs and actions of others.105 However, tolerance cannot be
equated with appeasement, permissiveness, or indifference. It is also G
not identical to neutrality. Toleration requires self-consciousness and self-
control in a sense that it is a restraint of negative judgment that is free
and deliberate. It implies no lack of commitment to one’s own belief but
105
Internet Encyclopaedia of Philosophy, Toleration by Andrew Fiala, ISSN 2161-
0002 H
270 SUPREME COURT REPORTS [2020] 14 S.C.R.

A rather it condemns oppression or persecution of others.106 Interpreted in
this sense, there is no ‘paradox of toleration’.107 The paradox whether
those who express their views or activities that are themselves intolerant
should be tolerated is answered by making evaluative judgment predicated
on rational universal principles.108 The test accepts rational argument
principle to keep intolerant philosophies in check. Thus, tolerance is not
B
to accept things that are better to overcome,109 or when practices reflect
intolerance within themselves, like disregard for human rights and
principles of equality and fraternity. Further, there may even be unjustified
religious beliefs in relation to morality, politics, origin of humanity, social
hierarchies, etc. which should not be tolerated.110 The argument can
C also be grounded on comprehensive moral theory.111 Tolerance also
means developing an ‘overlapping consensus’ between individuals and
groups with diverse perspectives to find reason to agree about certain
principles of justice.112 It is being fair to allow reasonable consensus to
emerge despite differences. In essence, it implies non-discrimination of
individuals or groups, but without negating the right to disagree and
D
disapprove belief and behaviour. It signifies that all persons or groups
are equal, even when all opinions and conduct are not equal. It also
means use of temperate language and civility towards others. In the
correct and true sense, undoubtedly ‘tolerance’ is a great virtue in all
societies, which when practiced by communities, gets noticed,
E acknowledged and appreciated.

106
John F. Kennedy
107
Karl Popper in The Open Society and Its Enemies, who has observed:
“...If we extend unlimited tolerance even to those who are intolerant, if we are not
F prepared to defend a tolerant society against the onslaught of the intolerant, then the
tolerant will be destroyed, and tolerance with them...”
108
According to Martin Packer, at least since Immanuel Kant and David Hume, morality
has been seeing as needing to take the form of ‘rational, universal principles’ that would
guide the autonomous individual. These principles would necessarily transcend the
many dictates of specific societies and cultures; the dictates are contingent while morality
and the good must be universally compelling.
G 109
Marjoka Van Doorn, the Nature of Tolerance and the Social Circumstances in Which
it Emerges, Current Sociology Review, 2014, Vol. 62(6) 905-927
110
Sam Hariss, The End of Faith
111
Michael Sandel Democracy’s Discontent (1998)
112
John Rawls, Theory of Justice (1971). Rawls idea of justice as fairness is based upon
principle that justice is political and not necessarily on moral principles.
H
AMISH DEVGAN v. UNION OF INDIA AND OTHERS 271
[SANJIV KHANNA, J.]

(iv) Interpretation of the statutory provisions A
60.We would now interpret Section 153A of the Penal Code, which
reads as under:
“153A. Promoting enmity between different groups on
grounds of religion, race, place of birth, residence,
language, etc., and doing acts prejudicial to maintenance of B
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 C
or feelings of enmity, hatred or ill-will between different religious,
racial, language or regional groups or castes or communities, or
(b)commits any act which is prejudicial to the maintenance of
harmony between different religious, racial, language or regional
groups or castes or communities, and which disturbs or is likely to D
disturb the public tranquillity, or
(c) organises 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 E
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 participants 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 F
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.
G
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
worship or religious ceremonies, shall be punished with
H
272 SUPREME COURT REPORTS [2020] 14 S.C.R.

A imprisonment which may extend to five years and shall also be
liable to fine.”
61. In the present case, we are not concerned with clause (c) to
sub- section (1) to Section 153A and hence we would not examine the
same. Section 153A has been interpreted by this court in Manzar Sayeed
B Khan and Balwant Singh and other cases. It would be, however,
important to refer to the legislative history of this Section as the same
was introduced by the Indian Penal Code (Amendment) Act, 1898 on
the recommendation of the Select Committee. The Section then enacted
had referred to words, spoken or written, or signs or visible representation
C or other means that promote or attempt to promote feeling of enmity or
hatred between different classes of citizens of India which shall be
punished with imprisonment that may extend to two years or fine or with
both. The explanation to the said Section was as under:
“Explanation.– It does not amount to an offence within the
D meaning of this section to point out without malicious intention
and with an honest view to their removal, matters which are
producing or have a tendency to produce, feelings of enmity or
hatred between different classes of Her Majesty’s subjects.”
The original enacted Section was amended with clauses (a) and
(b) by the Criminal Law (Amendment) Act, 1969 and clause (c) was
E
subsequently inserted by the Criminal Law (Amendment) Act, 1972.113
62. The Calcutta High Court in P.K. Chakravarty had delved
into the question of intention and had observed that the intention as to
whether or not the person accused was promoting enmity is to be collected
from the internal evidence of the words themselves, but this is not to say
F
that other evidence cannot be looked into. Likewise, while examining
the question of likelihood to promote ill- feelings the facts and
circumstances of that time must be taken into account. Something must
be known of the kind of people to whom the words are addressed. Words
will be generally decisive, especially in those cases where the intention
G is expressly declared if the words used naturally, clearly or indubitably
have such tendency. Then, such intention can be presumed as it is the
natural result of the words used. However, the words used and their
true meaning are never more than evidence of intention, and it is the real
113
The Wounded Vanity of Governments in ‘Republic of Rhetoric: Free Speech and the
H Constitution of India’ by Abhinav Chandrachud, Penguin Books India (2017)
AMISH DEVGAN v. UNION OF INDIA AND OTHERS 273
[SANJIV KHANNA, J.]

intention of the person charged that is the test. The judgment rejects the A
concept of constructive intention. Similarly, the Lahore High Court in
Devi Sharan Sharma had observed that intention can be deduced from
internal evidence of the words as well as the general policy of the paper
in which the concerned article was published, consideration of the person
for whom it was written and the state of feeling between the two
B
communities involved. In case the words used in the article are likely to
produce hatred, they must be presumed to be intended to have that effect
unless the contrary is shown. The Bombay High Court in Gopal Vinayak
Godse has observed that the intention to promote enmity or hatred is not
a necessary ingredient of the offence. It is enough to show that the
language of the writing is of the nature calculated to promote feelings of C
enmity or hatred, for a person must be presumed to intend the natural
consequences of his act. The view expressed by the Bombay High Court
in Gopal Vinayak Godse lays considerable emphasis on the words itself,
but the view expressed in P.K. Chakravarthy and Devki Sharma take
a much broader and a wider picture which, in our opinion, would be the
D
right way to examine whether an offence under Section 153A, clauses
(a) and (b) had been committed. The ordinary reasonable meaning of
the matter complained of may be either the literal meaning of the published
matter or what is implied in that matter or what is inferred from it. A
particular imputation is capable of being conveyed means and implies it
is reasonably so capable and should not be strained, forced or subjected E
to utterly unreasonable interpretation. We would also hold that deliberate
and malicious intent is necessary and can be gathered from the words
itself- satisfying the test of top of Clapham omnibus, the who factor-
person making the comment, the targeted and non targeted group, the
context and occasion factor- the time and circumstances in which the
F
words or speech was made, the state of feeling between the two
communities, etc. and the proximate nexus with the protected harm to
cumulatively satiate the test of ‘hate speech’. ‘Good faith’ and ‘no
legitimate purpose’ test would apply, as they are important in considering
the intent factor.
63. In Balwant Singh this Court had accepted that mens rea is G
an essential ingredient of the offence under Section 153A and only when
the spoken or written words have the intention of creating public disorder
for disturbance of law and order or affect public ‘tranquillity’, an offence
can be said to be committed. This decision was relied on in Bilal Ahmed
H
274 SUPREME COURT REPORTS [2020] 14 S.C.R.

A Kaloo114 while referring to and interpreting sub-section (2) to Section
505 of the Penal Code. Similarly, in Manzar Sayeed Khan, the intention
to promote feeling of enmity or hatred between different classes of people
was considered necessary as Section 153A requires the intention to cause
disorder or incite the people to violence. The intention has to be judged
primarily by the language of the book and the circumstances in which
B
the book was written and published.
64. In the context of Section 153A(b) we would hold that public
tranquillity, given the nature of the consequence in the form of punishment
of imprisonment of up to three years, must be read in a restricted sense
synonymous with public order and safety and not normal law and order
C issues that do not endanger the public interest at large. It cannot be
given the widest meaning so as to fall foul of the requirement of
reasonableness which is a constitutional mandate. Clause (b) of Section
153A, therefore, has to be read accordingly to satisfy the constitutional
mandate. We would interpret the words ‘public tranquillity’ in clause (b)
D would mean ordre publique a French term that means absence of
insurrection, riot, turbulence or crimes of violence and would also include
all acts which will endanger the security of the State, but not acts which
disturb only serenity, and are covered by the third and widest circle of
law and order. Public order also includes acts of local significance
embracing a variety of conduct destroying or menacing public order.
E Public Order in clause (2) to Article 19 nor the statutory provisions make
any distinction between the majority and minority groups with reference
to the population of the particular area though as we have noted above
this may be of some relevance. When we accept the principle of local
significance, as a sequitur we must also accept that majority and minority
F groups could have, in a given case, reference to a local area.
65. Section 295A and clause (2) of Section 505 of the Penal Code
reads as under:
“295-A. Deliberate and malicious acts intended to outrage
religious feelings of any class by insulting its religion or
G religious beliefs.— Whoever, with deliberate and malicious
intention of outraging the religious feelings of any class of citizens
of India, by words, either spoken or written, or by signs or by
visible representations or otherwise, insults or attempts to insult
114
Bilal Ahmed Kaloo was overruled on a different point in Prakash Kumar Alias
H Prakash Bhutto v. State of Gujarat, (2005) 2 SCC 409
AMISH DEVGAN v. UNION OF INDIA AND OTHERS 275
[SANJIV KHANNA, J.]

the religion or the religious beliefs of that class, shall be punished A
with imprisonment of either description for a term which may
extend to three years, or with fine, or with both.
xx xx xx
505. Statements conducing to public mischief.—
B
xx xx xx
(2) Statements creating or promoting enmity, hatred or ill-will
between classes.— Whoever makes, publishes or circulates any
statement or report containing rumour or alarming news with intent
to create or promote, or which is likely to create or promote, on C
grounds of religion, race, place of birth, residence, language, caste
or community or any other ground whatsoever, feelings of enmity,
hatred or ill-will between different religious, racial, language or
regional groups or castes or communities, shall be punished with
imprisonment which may extend to three years, or with fine, or
D
with both.”
The two provisions have been interpreted earlier in a number of
cases including Ramji Lal Modi, Kedar Nath, Bilal Ahmed Kaloo. It
could be correct to say that Section 295A of the Penal Code encapsulates
of all three elements, namely, it refers to the content-based element
when it refers to words either spoken or written, or by signs or visible E
representation or otherwise. However, it does not on the basis of content
alone makes a person guilty of the offence. The first portion refers to
deliberate and malicious intent on the part of the maker to outrage religious
feeling of any class of citizens of India. The last portion of Section 295A
refers to the harm-based element, that is, insult or attempt to insult religions F
or religious belief of that class. Similarly, sub- section (2) to Section 505
refers to a person making publishing or circulating any statement or
report containing rumour or alarming news. Thereafter, it refers to the
intent of the person which should be to create or promote and then
refers to the harm-based element, that is, likely to create or promote on
the ground of religion, race, place of birth, residence, language, cast, G
etc., feeling of enmity, hatred or ill-will between different religions, racial
language, religious groups or castes or communities, etc.
66. In Bilal Ahmad Kaloo, this Court had drawn a distinction
between sub-section (2) to Section 505 and clause (a) to Section 153A
H
276 SUPREME COURT REPORTS [2020] 14 S.C.R.

A of the Penal Code observing that publication is not necessary in the
latter while it is sine qua non under clause (2) of Section 505. Clause
(2) of Section 505 of the Penal Code cannot be interpreted disjunctively
and the words ‘whosoever makes, publishes or circulates’ are
supplemented to each other. The intention of the legislature in providing
two different sections of the same subject vide single amending act would
B
show that they cover two different fields of same colour.
67. Clauses (a) and (b) to sub-section (1) to Section 153A of the
Penal Code use the words ‘promotes’ and ‘likely’ respectively. Similarly,
Section 295-A uses the word ‘attempts’ and sub-section (2) to Section
505 uses the words ‘create or promote’. Word ‘likely’ as explained above,
C in our opinion, convey the meaning, that the chance of the event occurring
should be real and not fanciful or remote (Tillmanns Butcheries Pty
Ltd. v. Australasian Meat Industry Employees’ Union 115 ). The
standard of ‘not improbable’ is too weak and cannot be applied as it
would infringe upon and fall foul of reasonable restriction and the test of
D proportionality. This is the mandate flowing from the catena of judgments
of the Constitutional Benches which we have referred to earlier and
also the decision in Shreya Singhal drawing distinction between
advocacy, discussion and incitement and that only the latter, i.e. the
incitement, is punishable whereas the former two would fall within the
domain of freedom to express and convey one’s thoughts and ideas.
E ‘Incitement’ is a restricted term under the American Speech Law which
has been adopted by us and as per Brandenburg applies when the
incitement is imminent or almost inevitable. There has been some criticism
that the said test is too strong, nevertheless, it conveys that the standard
has to be strict. Instigation must necessarily and specifically be suggestive
F of the consequences. Sufficient certainty to incite the consequences
must be capable of being spelt out to be incitement. Further, it is for the
prosecution to show and establish that the standard has been breached
by leading evidence, which can be both oral and documentary. ‘Promote’
does not imply mere describing and narrating a fact, or giving opinion
criticising the point of view or actions of another person – it requires that
G the speaker should actively incite the audience to cause public disorder.
This active incitement can be gauged by the content of the speech, the
context and surrounding circumstances, and the intent of the speaker.
However, in case the speaker does not actively incite the descent into

115
H (1979) 27 ALR 380
AMISH DEVGAN v. UNION OF INDIA AND OTHERS 277
[SANJIV KHANNA, J.]

public disorder, and is merely pointing out why a certain person or group A
is behaving in a particular manner, what are their demands and their
point of view, or when the speaker interviews such person or group, it
would be a passive delivery of facts and opinions which may not amount
to promotion.
68. The word ‘attempt’, though used in Sections 153-A and 295- B
A of the Penal Code, has not been defined. However, there are judicial
interpretations that an ‘attempt to constitute a crime’ is an act done or
forming part of a series of acts which would constitute its actual
commission but for an interruption. An attempt is short of actual causation
of crime and more than mere preparation. In Aman Kumar v. State of
Haryana,116 it was held that an attempt is to be punishable because C
every attempt, although it falls short of success, must create alarm, which
by itself is an injury, and the moral guilt of the offender is same as if he
had succeeded. Moral guilt must be united to injury in order to justify
punishment. Further, in State v. Mohd. Yakub,117 this Court observed:
“13...What constitutes an attempt is mixed question of law and D
fact depending largely upon the circumstances of a particular case.
“Attempt” defies a precise and exact definition. Broadly speaking
all crimes which consist of the commission of affirmative acts are
preceded by some covert or overt conduct which may be divided
into three stages. The first stage exists when the culprit first E
entertains the idea or intention to commit an offence. In the second
stage he makes preparation to commit it. The third stage is reached
when the culprit takes deliberate overt act or step to commit the
offence. Such overt act or step in order to be ‘criminal’ need not
be the penultimate act towards the commission of the offence. It
is sufficient if such acts were deliberately done, and manifest a F
clear intention to commit the offence aimed, being reasonably
proximate to the consummation of the offence...”
On the scope of proximity, it was elucidated that the measure of
proximity is not in relation to time and place but in relation to intention.
G
In the context of ‘hate speech’, including the offences related to
promoting disharmony or feelings of enmity, hatred or ill-will, and insulting
the religion or the religious beliefs, it would certainly require the actual
116
(2004) 4 SCC 379
117
(1980) 3 SCC 57. H
278 SUPREME COURT REPORTS [2020] 14 S.C.R.

A utterance of words or something more than thought which would
constitute the content. Without actual utterance etc. it would be mere
thought, and thoughts without overt act is not punishable. In the case of
‘publication’, again a mere thought would not be actionable, albeit whether
or not there is an attempt to ‘publish’ would depend on facts. The
impugned act should be more than mere preparation and reasonably
B
proximate to the consummation of the offence, which has been
interrupted. The question of intent would be relevant. On the question of
the harm’s element, same test and principle, as applicable in the case of
‘likely’ would apply, except for the fact that for intervening reasons or
grounds public disorder or violence may not have taken place.
C 69. Having interpreted the relevant provisions, we are conscious
of the fact that we have given primacy to the precept of ‘interest of
public order’ and by relying upon ‘imminent lawless action’ principle, not
given due weightage to the long-term impact of ‘hate’ speech as a
propaganda on both the targeted and non-targeted groups. This is not to
D undermine the concept of dignity, which is the fundamental foundation
on the basis of which the citizens must interact between themselves and
with the State. This is the considered view of the past pronouncements
including the Constitution Bench judgments with which we are bound.
Further, a ‘hate speech’ meeting the criteria of ‘clear and present danger’
or ‘imminent lawless action’ would necessarily have long-term negative
E effect. Lastly, we are dealing with penal or criminal action and, therefore,
have to balance the right to express and speak with retaliatory criminal
proceedings. We have to also prevent abuse and check misuse. This
dictum does not, in any way, undermine the position that we must condemn
and check any attempt at dissemination of discrimination on the basis of
F race, religion, caste, creed or regional basis. We must act with the
objective for promoting social harmony and tolerance by proscribing
hateful and inappropriate behaviour. This can be achieved by self-
restraint, institutional check and correction, as well as self-regulation or
through the mechanism of statutory regulations, if applicable. It is not
penal threat alone which can help us achieve and ensure equality between
G groups. Dignity of citizens of all castes, creed, religion and region is best
protected by the fellow citizens belonging to non-targeted groups and
even targeted groups. As stated earlier, in a polity committed to pluralism,
hate speech cannot conceivably contribute in any legitimate way to
democracy and, in fact, repudiates the right to equality.
H
AMISH DEVGAN v. UNION OF INDIA AND OTHERS 279
[SANJIV KHANNA, J.]

70. Majority of the cases referred to by the petitioner were cases A
wherein after charge-sheet and trial, this Court had come to the
conclusion that no offence had been proved and established under Section
153A, 295A or sub-section (2) to Section 505 of the Penal Code. We do
not deem it necessary to reproduce the facts of those decisions and
apply their ratio in the present case. However, we would like to refer to
B
judgments where this Court has at the initial stage itself quashed the
proceedings arising out of the FIR, namely, Manzar Sayeed Khan,
Mahendra Singh Dhoni, Ramesh as well as Balwant Singh to clarify
the ratio.
71. In Balwant Singh, this Court, allowing the appeal, had set
aside convictions under Sections 124A and 153A of the Penal Code. C
While we are not concerned with Section 124A, this Court significantly
observed that the appellants were never leading a procession or raising
slogans with the intent to incite people, indicating that the Court did take
into account the ‘who’ factor as the appellants were unknown and
inconsequential. This is of consequence as far as Section 153A of the D
Penal Code is concerned. Both the content and context, given the
occasion, were highly incriminating and possibly warranted conviction,
but as per paragraphs 10 and 11, the court was not convinced that the
prosecution witnesses had spoken the whole truth and what slogan(s)
was/were actually shouted. Lastly, the harm effect or impact was also
taken into account. What is acceptable speech in one case, it could be E
well argued, should be acceptable in another, and therefore the ratio in
Balwant Singh must be applied with caution as the decision had
proceeded on failure of the prosecution. The ‘who’ factor as a variable
had weighed with the court. Besides there was no impact or harm.
72. Manzar Sayeed Khan was a case wherein the appellants F
had published a book titled ‘Shivaji: Hindu King in Islamic India’
authored by Prof. James W. Laine, a Professor of Religious Studies in
Macalester College, United States of America, which had led to
registration of FIR against the Indian Publisher and a Sanskrit scholar
whose name had appeared in the acknowledgement of the book for G
having helped the author by providing him some information during the
latter’s visit to Pune. The primary reason according to us why the appeal
was allowed and the proceedings arising from the FIR were quashed at
the initial stage are reflected in paragraph 19 of the judgment which
notes that the author was a well-known scholar who had done extensive
H
280 SUPREME COURT REPORTS [2020] 14 S.C.R.

A research before publishing the book. Further, he had relied upon material
and records at Bhandarkar Oriental Research Institute (BORI), Pune.
It was highly improbable to accept that any serious and intense scholar
like the author would have any desire or motive to involve himself in
promoting or attempt to promote any disharmony between communities,
castes or religions within the State. Good faith and (no) legitimate purpose
B
principle was effectively applied. These principles were also applied by
this Court in Ramesh holding that the T.V. Serial ‘Tamas’ did not depict
communal tension or violence to fall foul of Section 153A of the Penal
Code and/or was the serial prejudicial to national integration to fall under
Section 153B of the Penal Code. Reliance was also placed on the test of
C ‘Clapham omnibus’ referred to above. Mahendra Singh Dhoni was
a case in which prosecution under Section 295A was initiated by filing a
private complaint on the ground that the photograph of the well-known
cricketer, as published in the magazine, was with a caption ‘God of Big
Things’. It was obvious that prosecution on the basis of content was
absurd and too farfetched by any standards even if we ignore the intent
D
or the hurt element.
(v) Validity of First Information Reports (FIRs)
73. Acronym FIR, or the First Information Report, is neither defined
in the Criminal Code nor is used therein, albeit it refers to the information
E relating to the commission of a cognisable offence. This information, if
given orally to an officer in-charge of the police station, is mandated to
be reduced in writing. Information to be recorded in writing need not be
necessarily by an eye-witness, and hence, cannot be rejected merely
because it is hearsay. Section 154 does not mandate nor is this requirement
manifest from other provisions of the Criminal Code. Further, FIR is not
F meant to be a detailed document containing chronicle of all intricate and
minute details. In Dharma Rama Bhagare v. State of Maharashtra,118
it was held that an FIR is not even considered to be a substantive piece
of evidence and can be only used to corroborate or contradict the
informant’s evidence in the court.
G 74. In Lalita Kumari, a Constitution Bench, of five judges of this
Court, has held that Section 154 of the Criminal Code, in unequivocal
terms, mandates registration of FIR on receipt of all cognisable offences,
subject to exceptions in which case a preliminary inquiry is required.
118
(1973) 1 SCC 537
H
AMISH DEVGAN v. UNION OF INDIA AND OTHERS 281
[SANJIV KHANNA, J.]

The petitioner has not contended that the present case falls under any of A
such exceptions. Conspicuously, there is a distinction between arrest of
an accused person under Section 41 of the Criminal Code and registration
of the FIR, which helps maintain delicate balance between interest of
the society manifest in Section 154 of the Criminal Code, which directs
registration of FIR in case of cognisable offences, and protection of
B
individual liberty of those persons who have been named in the complaint.
The Constitution Bench referring to the decision of this Court in Tapan
Kumar Singh reiterated that the FIR is not an encyclopaedia disclosing
all facts and details relating to the offence. The informant who lodges
the report of the offence may not even know the name of the victim or
the assailant or how the offence took place. He need not necessarily be C
an eye-witness. What is essential is that the information must disclose
the commission of a cognisable offence and the information must provide
basis for the police officer to suspect commission of the offence. Thus,
at this stage, it is enough if the police officer on the information given
suspects – though he may not be convinced or satisfied – that a cognisable
D
offence has been committed. Truthfulness of the information would be a
matter of investigation and only there upon the police will be able to
report on the truthfulness or otherwise. Importantly, in Tapan Kumar
Singh, it was held that even if information does not furnish all details, it
is for the investigating officer to find out those details during the course
of investigation and collect necessary evidence. Thus, the information E
disclosing commission of a cognisable offence only sets in motion the
investigating machinery with a view to collect necessary evidence, and
thereafter, taking action in accordance with law. The true test for a valid
FIR, as laid down in Lalita Kumari, is only whether the information
furnished provides reason to suspect the commission of an offence which
F
the police officer concerned is empowered under Section 156(1) of the
Criminal Code to investigate. The questions as to whether the report is
true; whether it discloses full details regarding the manner of occurrence;
whether the accused is named; or whether there is sufficient evidence
to support the allegation are all matters which are alien to consideration
of the question whether the report discloses commission of a cognisable G
offence. As per clauses (1) (b) and (2) of Section 157 of the Criminal
Code, a police officer may foreclose an FIR before investigation if it
appears to him that there is no sufficient ground to investigate. At the
initial stage of the registration, the law mandates that the officer can
start investigation when he has reason to suspect commission of offence.
H
282 SUPREME COURT REPORTS [2020] 14 S.C.R.

A Requirements of Section 157 are higher than the requirements of Section
154 of the Criminal Code. Further, a police officer in a given case after
investigation can file a final report under Section 173 of the Criminal
Code seeking closure of the matter.
(vi) Conclusion and relief
B 75. At this stage and before recording our final conclusion, we
would like to refer to decision of this Court in Pirthi Chand wherein it
has been held:
“12. It is thus settled law that the exercise of inherent power of
the High Court is an exceptional one. Great care should be taken
C by the High Court before embarking to scrutinise the FIR/charge-
sheet/ complaint. In deciding whether the case is rarest of rare
cases to scuttle the prosecution in its inception, it first has to get
into the grip of the matter whether the allegations constitute the
offence. It must be remembered that FIR is only an initiation to
D move the machinery and to investigate into cognizable offence.
After the investigation is conducted (sic concluded) and the charge-
sheet is laid, the prosecution produces the statements of the
witnesses recorded under Section 161 of the Code in support of
the charge-sheet. At that stage it is not the function of the court to
weigh the pros and cons of the prosecution case or to consider
E necessity of strict compliance of the provisions which are
considered mandatory and its effect of non- compliance. It would
be done after the trial is concluded. The court has to prima facie
consider from the averments in the charge-sheet and the statements
of witnesses on the record in support thereof whether court could
F take cognizance of the offence on that evidence and proceed
further with the trial. If it reaches a conclusion that no cognizable
offence is made out, no further act could be done except to quash
the charge- sheet. But only in exceptional cases, i.e., in rarest of
rare cases of mala fide initiation of the proceedings to wreak
private vengeance [issue of process under Criminal Procedure
G Code is availed of. A reading of a complaint or FIR itself does not
disclose at all any cognizable offence — the court may embark
upon the consideration thereof and exercise the power.
13. When the remedy under Section 482 is available, the High
Court would be loath and circumspect to exercise its extraordinary
H
AMISH DEVGAN v. UNION OF INDIA AND OTHERS 283
[SANJIV KHANNA, J.]

power under Article 226 since efficacious remedy under Section A
482 of the Code is available. When the court exercises its inherent
power under Section 482, the prime consideration should only be
whether the exercise of the power would advance the cause of
justice or it would be an abuse of the process of the court. When
investigating officer spends considerable time to collect the
B
evidence and places the charge-sheet before the court, further
action should not be short-circuited by resorting to exercise inherent
power to quash the charge-sheet. The social stability and order
requires to be regulated by proceeding against the offender as it
is an offence against the society as a whole. This cardinal principle
should always be kept in mind before embarking upon exercising C
inherent power. The accused involved in an economic offence
destabilises the economy and causes grave incursion on the
economic planning of the State. When the legislature entrusts the
power to the police officer to prevent organised commission of
the offence or offences involving moral turpitude or crimes of
D
grave nature and are entrusted with power to investigate into the
crime in intractable terrains and secretive manner in concert,
greater circumspection and care and caution should be borne in
mind by the High Court when it exercises its inherent power.
Otherwise, the social order and security would be put in jeopardy
and to grave risk. The accused will have field day in destabilising E
the economy of the State regulated under the relevant provisions.”
The aforesaid ratio was followed by this Court in O.P. Sharma.
76. In Arnab Ranjan Goswami, this Court in almost identical
circumstances had refused to examine the question whether the
proceedings arising out of the FIR filed against a journalist should be F
quashed in exercise of jurisdiction under Article 32 of the Constitution
on the ground that the petitioner must be relegated to pursue equally
efficacious remedies under the Criminal Code, observing:
“49. We hold that it would be inappropriate for the court to exercise
its jurisdiction under Article 32 of the Constitution for the purpose G
of quashing FIR 164 of 2020 under investigation at the NM 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.
H
284 SUPREME COURT REPORTS [2020] 14 S.C.R.

A Despite the liberty being granted to the petitioner on 24 April 2020,
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
B
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
C 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
D
under Article 32 for the relief of quashing the FIR being investigated
at the NM 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
E the High Court.”
77. 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
F 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.
G 78. We have already reproduced relevant portions of the transcript
of the debate anchored by the petitioner. It is apparent that the petitioner
was an equal co-participant, rather than a mere host. The transcript,
including the offending portion, would form a part of the ‘content’, but
any evaluation would require examination and consideration of the variable
‘context’ as well as the ‘intent’ and the ‘harm/impact’. These have to be
H
AMISH DEVGAN v. UNION OF INDIA AND OTHERS 285
[SANJIV KHANNA, J.]

evaluated before the court can form an opinion on whether an offence is A
made out. The evaluative judgment on these aspects would be based
upon facts, which have to be inquired into and ascertained by police
investigation. ‘Variable content’, ‘intent’ and the ‘harm/impact’ factors,
as asserted on behalf of the informants and the State, are factually disputed
by the petitioner. In fact, the petitioner relies upon his apology, which as
B
per the respondents/informants is an indication or implied acceptance of
his acts of commission.
79. Having given our careful and in-depth consideration, we do
not think it would be appropriate at this stage to quash the FIRs and thus
stall the investigation into all the relevant aspects. However, our
observations on the factual matrix of the present case in this decision C
should not in any manner influence the investigation by the police who
shall independently apply their mind and ascertain the true and correct
facts, on all material and relevant aspects. Similarly, the competent
authority would independently apply its mind in case the police authorities
seek sanction, and to decide, whether or not to grant the same. Same D
would be the position in case charge-sheet is filed. The court would
apply its mind whether or not to take cognisance and issue summons.
By an interim order, the petitioner has enjoyed protection against coercive
steps arising out of and relating to the program telecast on 15.06.2020.
Subject to the petitioner cooperating in the investigation, we direct that
no coercive steps for arrest of the petitioner need be taken by the police E
during investigation. In case and if charge-sheet is filed, the court would
examine the question of grant of bail without being influenced by these
directions as well as any findings of fact recorded in this judgment.
80. We are conscious and aware of the decisions of this Court in
Bhajan Lal, P.P. Sharma and the earlier decision in R.P. Kapur which F
held that the High Court, in exercise of inherent jurisdiction, can quash
proceedings in a proper case either to prevent abuse of process or
otherwise to secure ends of justice. These could be cases where,
manifestly, there is a legal bar against institution or continuance of the
prosecution or the proceedings, such as due to requirement of prior G
sanction; or where the allegations made in the FIR or the complaint,
even if they are taken at their face value and accepted in their entirety
do not prima facie constitute any offence or make out a case against
the accused; or where the allegations in the FIR do not disclose a
cognizable offence; or where the allegations made in the FIR or complaint
H
286 SUPREME COURT REPORTS [2020] 14 S.C.R.

A are so absurd and inherently improbable on the basis of which no prudent
person can ever reach a just conclusion that there is sufficient ground
for proceeding against the accused. Another qualifying category in cases
where charge-sheet is filed would be those where allegations against
the accused do constitute the offence alleged, but there is either no legal
evidence adduced in support of the case or the evidence adduced clearly
B
or manifestly fails to prove the charge. Application of these principles
depends on factual matrix of each case. Strict and restricted as the
requirements are, they are at this stage not satisfied in the present case.
D. The second prayer – multiplicity of FIRs and whether
they should be transferred and clubbed with the first FIR
C registered at P.S. Dargha, Ajmer, Rajasthan
81. We would now examine the second prayer of the petitioner
viz. multiplicity of FIRs being registered in the States of Rajasthan,
Maharashtra, Telangana, and Madhya Pradesh (now transferred to Uttar
Pradesh) relating to the same broadcast. Fortunately, both the sides agree
D that the issue is covered by the decision of this Court in T.T. Antony
which has been followed in Arnab Ranjan Goswami’s case. It would
be appropriate in this regard to therefore reproduce the observations in
Arnab Ranjan Goswami’s case which are to the following effect:
“28...The law concerning multiple criminal proceedings on the
E same cause of action has been analyzed in a judgment of this
Court in TT Antony v. State of Kerala (“TT Antony”). Speaking
for a two judge Bench, Justice Syed Shah Mohammed Quadri
interpreted the provisions of Section 154 and cognate provisions
of the CrPC including Section 173 and observed:
F “20…under the scheme of the provisions of Sections 154, 155,
156, 157, 162, 169, 170 and 173 CrPC, only the earliest or the
first information in regard to the commission of a cognizable
offence satisfies the requirements of Section 154 CrPC. Thus,
there can be no second FIR and consequently there can be no
G fresh investigation on receipt of every subsequent information
in respect of the same cognizable offence or the same
occurrence or incident giving rise to one or more cognizable
offences. On receipt of information about a cognizable offence
or an incident giving rise to a cognizable offence or offences
and on entering the FIR in the station house diary, the officer
H
AMISH DEVGAN v. UNION OF INDIA AND OTHERS 287
[SANJIV KHANNA, J.]

in charge of a police station has to investigate not merely the A
cognizable offence reported in the FIR but also other connected
offences found to have been committed in the course of the
same transaction or the same occurrence and file one or more
reports as provided in Section 173 CrPC.”
The Court held that “there can be no second FIR” where the B
information concerns the same cognisable offence alleged in the
first FIR or the same occurrence or incident which gives rise to
one or more cognisable offences. This is due to the fact that the
investigation covers within its ambit not just the alleged cognisable
offence, but also any other connected offences that may be found
to have been committed. This Court held that once an FIR C
postulated by the provisions of Section 154 has been recorded,
any information received after the commencement of investigation
cannot form the basis of a second FIR as doing so would fail to
comport with the scheme of the CrPC. The court observed:
“18…AII other information made orally or in writing after the D
commencement of the investigation into the cognizable offence
disclosed from the facts mentioned in the first information report
and entered in the station house diary by the police officer or
such other cognizable offences as may come to his notice during
the investigation, will be statements falling under Section 162 E
CrPC. No such information/ statement can properly be treated
as an FIR and entered in the station house diary again, as it
would in effect be a second FIR and the same cannot be in
conformity with the scheme of CrPC.”
This Court adverted to the need to strike a just balance between F
the fundamental rights of citizens under Articles 19 and 21 and
the expansive power of the police to investigate a cognisable
offence. Adverting to precedent, this Court held:
“27…the sweeping power of investigation does not warrant
subjecting a citizen each time to fresh investigation by the police G
in respect of the same incident, giving rise to one or more
cognizable offences, consequent upon filing of successive FIRs
whether before or after filing the final report under Section
173(2) CrPC. It would clearly be beyond the purview of
Sections 154 and 156 CrPC, nay, a case of abuse of the statutory
H
288 SUPREME COURT REPORTS [2020] 14 S.C.R.

A power of investigation in a given case. In our view a case of
fresh investigation based on the second or successive FIRs,
not being a counter-case, filed in connection with the same or
connected cognizable offence alleged to have been committed
in the course of the same transaction and in respect of which
pursuant to the first FIR either investigation is under way or
B
final report under Section 173(2) has been forwarded to the
Magistrate, may be a fit case for exercise of power under
Section 482 CrPC or under Articles 226/227 of the
Constitution.”
(Emphasis supplied)
C
The Court held that barring situations in which a counter-case is
filed, a fresh investigation or a second FIR on the basis of the
same or connected cognisable offence would constitute an “abuse
of the statutory power of investigation” and may be a fit case for
the exercise of power either under Section 482 of the CrPC or
D Articles 226/227 of the Constitution.
29. The decision in TT Antony came up for consideration before
a three judge Bench in Upkar Singh v. Ved Prakash (“Upkar
Singh”). Justice N Santosh Hegde, speaking for this Court adverted
to the earlier decisions of this Court in Ram Lal Narang v.
E State (Delhi Administration) (“Ram Lal Narang”), Kari
Choudhary v. Mst. Sita Devi (“Kari Choudhary”) and State
of Bihar v. JAC Saldanha (“Saldanha”). The Court noted that
in Kari Choudhary, this Court held that:
“11…Of course the legal position is that there cannot be two
F
FIRs against the same accused in respect of the same case.
But when there are rival versions in respect of the same episode,
they would normally take the shape of two different FIRs and
investigation can be carried on under both of them by the same
investigating agency.”
G 30. In Saldanha, this Court had held that the power conferred
upon the Magistrate under Section 156(3) does not affect the
power of the investigating officer to further investigate the case
even after submission of the report under Section 173(8). In Upkar
Singh, this Court noted that the decision in Ram Lal Narang is “in
H
AMISH DEVGAN v. UNION OF INDIA AND OTHERS 289
[SANJIV KHANNA, J.]

the same line” as the judgments in Kari Choudhary and Saldanha A
and held that the decision in TT Antony does not preclude the
filing of a second complaint in regard to the same incident as a
counter complaint nor is this course of action prohibited by the
CrPC. In that context, this Court held:
“23. Be that as it may, if the law laid down by this Court in T.T. B
Antony case is to be accepted as holding that a second
complaint in regard to the same incident filed as a counter-
complaint is prohibited under the Code then, in our opinion,
such conclusion would lead to serious consequences. This will
be clear from the hypothetical example given hereinbelow i.e.
if in regard to a crime committed by the real accused he takes C
the first opportunity to lodge a false complaint and the same is
registered by the jurisdictional police then the aggrieved victim
of such crime will be precluded from lodging a complaint giving
his version of the incident in question, consequently he will be
deprived of his legitimate right to bring the real accused to D
book. This cannot be the purport of the Code.”
These principles were reiterated by a two judge Bench of this
Court in Babubhai v. State of Gujarat. Dr Justice B S Chauhan
observed:
“21. In such a case the court has to examine the facts and E
circumstances giving rise to both the FIRs and the test of
sameness is to be applied to find out whether both the FIRs
relate to the same incident in respect of the same occurrence
or are in regard to the incidents which are two or more parts
of the same transaction. If the answer is in the affirmative, the F
second FIR is liable to be quashed. However, in case the
contrary is proved, where the version in the second FIR is
different and they are in respect of the two different incidents/
crimes, the second FIR is permissible. In case in respect of
the same incident the accused in the first FIR comes forward
with a different version or counterclaim, investigation on both G
the FIRs has to be conducted.”
This Court held that the relevant enquiry is whether two or more
FIRs relate to the same incident or relate to incidents which form
part of the same transactions. If the Court were to conclude in
H
290 SUPREME COURT REPORTS [2020] 14 S.C.R.

A the affirmative, the subsequent FIRs are liable to be quashed.
However, where the subsequent FIR relates to different incidents
or crimes or is in the form of a counter-claim, investigation may
proceed. [See also in this context Chirra Shivraj v. State of
Andhra Pradesh and Chirag M Pathak v. Dollyben Kantilal
Patel].
B
The aforesaid quotation refers to the judgment of this Court in
Babubhai v. State of Gujarat and Others 119 wherein the test to
determine sameness of the FIRs has been elucidated as when the subject
matter of the FIRs is the same incident, same occurrence or are in
regard to incidents which are two or more parts of the same transaction.
C If the answer to the question is affirmative, then the second FIR need
not be proceeded with.
82. In Arnab Ranjan Goswami’s case, the proceedings in the
subsequent FIRs were quashed as the counsel for the complainants in
the said case had joined the petitioner in making the said prayer. However,
D in the present case, we would like to follow the ratio in T.T. Antony
which is to the effect that the subsequent FIRs would be treated as
statements under Section 162 of the Criminal Code. This is clear from
the following dictum in T.T. Antony:
“18. An information given under sub-section (1) of Section
E 154 CrPC is commonly known as first information report (FIR)
though this term is not used in the Code. It is a very important
document. And as its nickname suggests it is the earliest and
the first information of a cognizable offence recorded by an
officer in charge of a police station. It sets the criminal law in
F motion and marks the commencement of the investigation which
ends up with the formation of opinion under Section 169 or 170
CrPC, as the case may be, and forwarding of a police report
under Section 173 CrPC. It is quite possible and it happens not
infrequently that more informations than one are given to a
police officer in charge of a police station in respect of the
G same incident involving one or more than one cognizable
offences. In such a case he need not enter every one of them
in the station house diary and this is implied in Section 154
CrPC. Apart from a vague information by a phone call or a
119
(2010) 12 SCC 254
H
AMISH DEVGAN v. UNION OF INDIA AND OTHERS 291
[SANJIV KHANNA, J.]

cryptic telegram, the information first entered in the station A
house diary, kept for this purpose, by a police officer in charge
of a police station is the first information report — FIR
postulated by Section 154 CrPC. All other informations made
orally or in writing after the commencement of the investigation
into the cognizable offence disclosed from the facts mentioned
B
in the first information report and entered in the station house
diary by the police officer or such other cognizable offences
as may come to his notice during the investigation, will be
statements falling under Section 162 CrPC. No such
information/ statement can properly be treated as an FIR and
entered in the station house diary again, as it would in effect C
be a second FIR and the same cannot be in conformity with
the scheme of CrPC. Take a case where an FIR mentions
cognizable offence under Section 307 or 326 IPC and the
investigating agency learns during the investigation or receives
fresh information that the victim died, no fresh FIR under
D
Section 302 IPC need be registered which will be irregular; in
such a case alteration of the provision of law in the first FIR is
the proper course to adopt. Let us consider a different situation
in which H having killed W, his wife, informs the police that
she is killed by an unknown person or knowing that W is killed
by his mother or sister, H owns up the responsibility and during E
investigation the truth is detected; it does not require filing of
fresh FIR against H — the real offender — who can be
arraigned in the report under Section 173(2) or 173(8) CrPC,
as the case may be. It is of course permissible for the
investigating officer to send up a report to the Magistrate
F
concerned even earlier that investigation is being directed
against the person suspected to be the accused.”
83. This would be fair and just to the other complainants at whose
behest the other FIRs were caused to be registered, for they would be in
a position to file a protest petition in case a closure/final report is filed by
the police. Upon filing of such protest petition, the magistrate would be G
obliged to consider their contention(s), and may even reject the closure/
final report and take cognizance of the offence and issue summons to
the accused. Otherwise, such complainants would face difficulty in
contesting the closure report before the Magistrate, despite and even if
there is enough material to make out a case of commission of an offence. H
292 SUPREME COURT REPORTS [2020] 14 S.C.R.

A 84. Lastly, we would also like to clarify that Section 179 of the
Criminal Code permits prosecution of cases in the court within whose
local jurisdiction the offence has been committed or consequences have
ensued. Section 186 of the Criminal Code relates to cases where two
separate charge-sheets have been filed on the basis of separate FIRs
and postulates that the prosecution would proceed where the first charge-
B
sheet has been filed on the basis of the FIR that is first in point of time.
Principle underlying section 186 can be applied at the pre-charge-sheet
stage, that is, post registration of FIR but before charge-sheet is submitted
to the Magistrate. In such cases ordinarily the first FIR, that is, the FIR
registered first in point of time, should be treated as the main FIR and
C others as statements under Section 162 of the Criminal Code. However,
in exceptional cases and for good reasons, it will be open to the High
Court or this Court, as the case may be, to treat the subsequently registered
FIR as the principal FIR. However, this should not cause any prejudice,
inconvenience or harassment to either the victims, witnesses or the person
who is accused. We have clarified the aforesaid position to avoid any
D
doubt or debate on the said aspect.
85. In view of our findings, we accept the prayer made in the last
amended writ petition and transfer all FIRs listed at serial No. 2 to 7 in
paragraph 4 (supra) to police station Dargah, Ajmer, Rajasthan, where
the first FIR was registered. We do not find any good ground or special
E reason to transfer the FIRs to Noida, Uttar Pradesh. Statement of the
complaint/informant forming the basis of the transferred FIRs would be
considered as statement under Section 162 of the Criminal Code and be
proceeded with. Compliance of the above directions to transfer papers
would be made by the concerned police station within four weeks when
F they receive a copy of this order. The above directions would equally
apply to any other FIR/complaint predicated on the same telecast/ episode.
E. The third prayer
86. Regarding the third prayer made by the petitioner, following
the ratio laid down in Arnab Ranjan Goswami we direct the State of
G Uttar Pradesh to examine the threat perception for the petitioner and his
family members and take appropriate steps as may necessary. Similar
assessment be made by the State of Rajasthan and based on the inputs
given by its agencies steps as may be necessary be taken on usual terms.

H
AMISH DEVGAN v. UNION OF INDIA AND OTHERS 293
[SANJIV KHANNA, J.]

Operative directions A
87. In view of the aforesaid discussion, we decline and reject the
prayer of the petitioner for quashing of the FIRs but have granted interim
protection to the petitioner against arrest subject to his joining and
cooperating in investigation till completion of the investigation in terms
of our directions in paragraphs 79 and 85 above. We have however B
accepted the prayer of the petitioner for transfer of all pending FIRs in
relation to and arising out of the telecast/episode dated 15th June 2020
to P.S. Dargah, Ajmer, Rajasthan, where the first FIR was registered.
On the third prayer, we have asked the concerned states to examine the
threat perception of the petitioner and family members and take
appropriate steps as may be necessary. C

88. The writ petition and all pending applications are, accordingly,
disposed of in the aforesaid terms.

Ankit Gyan Writ Petition disposed of.
D

E

F

G

H