- This post is from a series of posts dealing with basic Indian content laws. Other posts from the series can be accessed at Content101.
The Indian Penal Code (the ‘IPC’) makes the promotion of enmity in society a criminal offence through the provisions contained in Sections 153A, 153B, 295A and 505. The first of these, Section 153A deals with promoting enmity between different societal groups and performing acts prejudicial to maintenance of harmony; Section 153B penalises the making of imputations, assertions prejudicial to national-integration; Section 295A deals with deliberate and malicious acts intended to outrage religious feelings of any class by insulting its religion or religious beliefs; and Section 505 deals with statements conducing to public mischief.
Under Section 153A(1)(a), IPC, among other things, whoever promotes or attempts to promote by written words disharmony or feelings of enmity and hatred or ill will between different religious, racial, language or regional groups or castes or communities on grounds of religion, race, etc. is punishable with imprisonment which may extend to three years, or with a fine, or with both.
As a general rule, no criminal offence is committed where a person does not intend to commit an offence. In the case of Section 153A, IPC, though, there has been some amount of debate regarding whether liability would only lie if an act contemplated by the Section was performed with the intention of promoting enmity or disharmony in society. It appears that earlier, all that was required to establish the commission of an offence under Section 153A, IPC, was that the act had the consequence of promoting enmity or disharmony in society — the intention with which the act was performed was immaterial. This interpretation is supported by a judicial decision in a 1957 case, Harnam Das v. State of UP [AIR 1957 All 538], where it was held: ‘The legislature contemplates that the words spoken or written which do promote hatred etc. create sufficient mischief so as to fall within the scope of Section 153A and that it is not necessary for the State to further establish that the writer had the intention to promote a hatred.’ Further, in the same case, it was held: ‘Even if a question of intention were to arise, such intention must be gathered from the written words in the present case, and they themselves would be conclusive and it would not be necessary for the State further to prove that such intention was obtained by the use of such words.’
Later cases, however, deviate from position of law explicated in Harnam Das with it being held: ‘The use of the expression “promotes or attempts to promote” in Section 153A shows that there has to be mens rea on the part of the accused to commit the offence of promoting disharmony amongst different religions under section 153A.’ [State (Delhi administration) v. Sri Kanth Sastri, 1987 CrLJ 1583]
As far as Section 295A, IPC, is concerned: the provision is basically a blasphemy prohibition, which reads in its entirety, as follows: ‘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 the religion or the religious beliefs of that class, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.’ The debate about the importance of intention does not arise in relation to this Section as the statute itself clearly mandates that there be ‘deliberate and malicious intention’ for an offence to have been committed. Thus, the absence of any intention to perform an act contemplated by Section 295A is a valid defence as far as the Section is concerned.
What is interesting about Sections 153A and 295A, IPC, is that they interact with each other and the offences contemplated under them are often allied offences. Further, the defence of truth is not entirely applicable to an offence under either one of these Sections.
Section 153A is not intended to suppress scholarship — this appears to be borne out by the decision of the Supreme Court in the case of Manzar Sayeed Khan, Vinod Hansraj Goyal v. State of Maharashtra [AIR 2007 SC 2074], where it was held that where the ‘author was a serious and intense scholar and the book was dedicated to his mother, it was held that the author, printer and publisher could not be proceeded [against] for the offence’. Nonetheless, ‘serious scholarship’, is not an impenetrable defence to allegations made under Section 153A.
Although it has been held that ‘it would be no offence under Section 153A if the author adheres to the historical part of his narrative, however unpalatable it would be to the members of the other community’ this permissiveness comes with its caveats — an author may not use language which shows malice and is bound to annoy the members of the other community so as to degrade them in the eyes of the other classes, and if he does so, he is promoting feelings of enmity and hatred and is liable to be dealt with under both Section 153A and Section 295A [Harnam Das]. Further, the writing must not be calculated to promote feelings of enmity or hatred and ‘it is no defence to a charge under Section 153A section that the writing contains a truthful account of past events or is otherwise supported by good authority. Adherence to the strict path of history is not by itself a complete defence to a charge under Section 153A’ [Gopal (1969) 72 Bom LR 871 (SB)].
Similar sentiments also find expression in relation to Section 295A, IPC — the blasphemy prohibition — which may in fact be construed as giving even less leeway to authors than Section 153A, IPC. Truth is generally not considered to be an absolute defence in respect of Section 295A although the general understanding is that what counts is not just the substance of one’s words but also their tone.
In contrast to this, the lack of an intention to commit an offence coupled with the truth is a good defence to any allegations which may be made under Section 505, IPC, which deals with statements conducive to public mischief, among other things, states that ‘whoever makes, publishes or circulates any statement, rumour or report, (i) with intent to cause, or which is likely to cause, fear or alarm to the public, or to any section of the public whereby any person may be induced to commit an offence against the State or against the public tranquillity; or (ii) with intent to incite, or which is likely to incite, any class or community of persons to commit any offence against any other class or community is punishable with imprisonment which may extend to three years, or with a fine, or with both’.
In addition to this, under Section 505(2), IPC, ‘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 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 with both.’
Section 505, IPC, however, also contains a clear exception which states: ‘It does not amount to an offence, within the meaning of this section when the person making, publishing or circulating any such statement, rumour or report, has reasonable grounds for believing that such statement, rumour or report is true and makes, publishes or circulates it in good faith and without any such [malafide] intent as aforesaid.’
[Update: Section 66A of the IT Act was struck down by the Supreme Court in 2015. It became history for everyone but those who'd already been or begun being prosecuted under it. (Read more) ]
Pertinently, there also appears to be an 'umbrella' provision in the Information Technology Act, 2000, (the ‘IT Act’) which could be invoked to buttress the provisions in the IPC in cases where content contemplated by the IPC (in Sections 153A, 153B, 295A or 505) is published online (or by means of a computer resource or communication device). This provision is contained in Section 66A(b), IT Act which states that ‘any person who sends, by means of a computer resource or a communication device, any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will, persistently by making use of such computer resource or a communication device, shall be punishable with imprisonment for a term which may extend to three years and with fine’. As such, the scope of Section 66A(b) of the IT Act is extremely narrow: the sending/publication of false information per se is not an offence under it — it is only the sending/publication of information which the person sending/publishing it knows to be false which is an offence, and that too, only if the purpose of doing so is to cause disharmony between persons. Further, the use of the word ‘persistently’ in Section 66A(b), IT Act, appears to indicate that the provision would not be invoked if the offensive content was sent/published as a ‘one-off’, so to speak.
That said, there is also a far more worrying provision in Section 66A, IT Act, and it could be argued that the provisions of the Section, in fact, lay down far more restrictive parameters within which free speech may be exercised than the Indian Penal Code. This is because sub-section (a) of Section 66A, IT Act, makes potentially illegal 'any information that is grossly offensive or has menacing character'. Notably, this provision does not pertain solely to content which is libellous or otherwise illegal under traditional criminal law, but goes so far as to potentially make content which is otherwise legal fall foul of the law solely by reason of being 'offensive'.
The provisions of the IPC are applicable to all content, whether offline or online. As such, if one were to compare the IPC and the IT Act, it would appear that the IT Act is no less stringent than the IPC, and may, in some cases, restrict free speech to an extent not seen in relation to traditional media. The provisions in the IPC, (including Sections 153A, 153B, 295A and 505), do restrict the freedom of speech although, amongst them, Section 505 is the most 'lenient'. It is, however, important to bear in mind that there is no compelling evidence to support the proposition that it is the intention of any of these Sections to support censorship — they are intended to maintain public order, and, as such, the unwarranted invocation of these provisions solely to stifle free speech is unlikely to be supported by the judiciary.