Recently an FIR was filed against a 29-year old man from Navi Mumbai for allegedly having used Mughal Emperor Aurangzeb’s picture on his WhatsApp status.
The accused has been booked under:
Section 153A IPC: promoting enmity between different groups on grounds of religion etc.
Section 298 IPC: uttering words etc. with deliberate intent to wound the religious feelings of any person
BUT HOW JUSTIFIED IS IT TO ARREST A PERSON FOR SHARING A PICTURE ON SOCIAL MEDIA?
In the case of Amish Devgan v. Union of India, the Supreme Court said that Section 153A IPC penalises an act which is likely to disturb the public tranquillity,
The court said, “The term public tranquillity cannot be given the widest meaning so as to fall foul of the requirement of reasonableness which is a constitutional mandate, it cannot include acts that merely disturb public serenity.”
The court also said that to ensure maximisation of free speech and not create ‘free speaker’s burden’, the assessment should be from the perspective of a 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.
In another case of Sunaina Holey v. State of Maharashtra in 2021, The Bombay High Court has given primacy to Article 19 of the Constitution of India which guarantees right to free speech and expression to all persons. The court said that any law seeking to restrict free speech can only muster if it restricts speech on any of the eight grounds mentioned in Article 19(2), namely,
● 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
The court also noted that the fear of serious injury cannot alone justify suppression of free speech. there must be reasonable ground to believe that danger apprehended is imminent and that the evil to be prevented is serious one.