Derogatory remarks against Sufi saint: SC refuses to quash FIRs against news anchor Amish Devgan

Satya Prakash

Tribune News Service

New Delhi, December 7

The Supreme Court on Monday refused to quash FIRs against TV news anchor Amish Devgan for his alleged defamatory remark against Sufi saint Khwaja Moinuddin Chisti, but said the protection from arrest given to him would continue if he cooperated with the investigation.

“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,” a Bench of Justice AM Khanwilkar and Justice Sanjiv Khanna said.

The Bench, however, clubbed all seven FIRs lodged against Devgan in Maharashtra, Uttar Pradesh, Madhya Pradesh and Telangana to Ajmer in Rajasthan. It also asked the stated concerned “to examine the threat perception of the petitioner and family members and take appropriate steps as may be necessary.”

Devgan had sought clubbing of all cases against him for what he described as an “inadvertent mistake” of uttering “Chishti” in place of “Khilji” in a show telecast on June 15. He had issued a clarification and apologised for the slip of tongue. Such errors can’t be treated as criminal offences, he had submitted.

It said, “‘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 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.”

Quoting from an article by Alice E. Marwick and Ross Miller of Fordham University, New York, the Bench said there were 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).

However, it said “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’.”

“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 of ‘who’ and question of indulgence would lose significance and may be of little consequence,” the top court said.

On the importance of tolerance, the Bench said, “Tolerance 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 disapprove belief and behaviour.”

The Bench, however, noted, “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 a criminal offence of ‘hate speech’.”

It said, “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 ‘likely to promote’ public disorder, would not be protected.”

The court acknowledged that “in many ways, free speech has empowered those who were marginalised and discriminated against and thus it would be wholly incorrect and a mistake to assume that free speech is an elite concept and indulgence.”

Adding caveat to treatment of historical events, the top court said, “The historical truth must be depicted without in any way disclosing or encouraging hatred or enmity between different classes or communities.”