Telangana High Court
Kancha Ilaiah vs Home Dept., Secretariat., And 3 Others on 13 December, 2024
Author: G. Radha Rani
Bench: G. Radha Rani
HONOURABLE Dr. JUSTICE G. RADHA RANI WRIT PETITION Nos.36994, 36998, 37054 and 41207 of 2017 COMMON ORDER:
All these writ petitions are disposed of by a common order as the petitioner in all the writ petitions is one and the same and he filed the above writ petitions seeking issuance of an appropriate writ preferably a writ in the nature of Mandamus to declare the FIRs / Calendar Cases registered against him as illegal, arbitrary and violative of Article 19(1)(a) of the Constitution of India and consequently to quash the same.
2. W.P. No.36994 of 2017 is filed to quash the proceedings in Crime No.770 of 2017 on the file of Malkajgiri Police Station, Rachakonda, registered for the offences under Sections 153A(c), 153B, 295A, 509 IPC and Section 3 (1) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act (for short 'SC & ST Act') read with Section 156 (3) Cr.P.C.
3. W.P. No.36998 of 2017 is filed to quash the proceedings in CC No.417 of 2017 on the file of Judicial Magistrate of First Class, 2 Dr.GRR,J WP No.36994 of 2017&Batch Korutla, Jagtial District, for the offences under Sections 153A(b), 295A, 298, 504, 505(1)(b)(c) of IPC.
4. W.P. No.37054 of 2017 is filed to quash the proceedings in Crime No.438 of 2017 on the file of the Station House Officer, Karimnagar I-Town Police Station, Karimnagar District, registered for the offences under Sections 153A, 295A, 325, 500, 504 and 506 IPC read with 156(3) Cr.P.C.
5. W.P. No.41207 of 2017 is filed to quash the proceedings in CC No.537 of 2017 on the file of X Metropolitan Magistrate, Cyberabad at Neredmet, registered for the offences under Sections 153A(b), 295A and 509 IPC.
6. Heard Sri A. Satyaprasad, learned Senior Counsel for the petitioner, Sri K. Venumadhav, learned counsel for the respondent No.2 in WP No.36998 of 2017, Sri Somasi Srinivas, learned counsel for the respondent No.2 in WP Nos.37054 and 41207 of 2017, Sri G.L. Narasimha Rao, learned counsel for the respondent No.4 in WP No.36994 of 2017 and the learned Government Pleader for the official respondents in all the writ petitions.
3
Dr.GRR,J WP No.36994 of 2017&Batch
7. Learned counsel for the petitioner submitted that the petitioner was a well known academician and author of various books including 'Post-Hindu India' (discussion on Dalit-Bahujana Social, Spiritual and Scientific Revolution), published by SAGE, an International Publishing House. The said book was published in the year 2009. It mainly deals with the historical role of various castes and communities in production, distribution, business and spiritual activities. The said work was an internationally acclaimed one and received reviews from various national and international newspapers appreciating and acknowledging the book. The said book has as many as 13 chapters. Each chapter deals with a community, its origin, role, production activities and historical interaction between caste and caste, field and field, culture and culture. It was a scholarly work. The said book was also published in Telugu by EMESCO Publications, Hyderabad in 2011 which also received wide appreciation. In order to reach a large segment of people, each chapter was published as a separate book. Totally 9 books were published in Telugu language by Bhoomi Book Press, Hyderabad. Since the titles of the chapters did not indicate the caste names which every chapter dealt with, the caste names had been indicated in the booklets along with title used for the chapter to inform the reader as to what that 4 Dr.GRR,J WP No.36994 of 2017&Batch book contained. If the entire book was published in Telugu, there would have been no necessity to indicate the name of the community. But, when it was published separately, it became necessary to indicate the name of each caste/community for the benefit of the reader.
7.1. In that process, Chapter-9 of Post-Hindu India book was published as 'Saamajika Smugglerlu Komatollu'. The said booklet contained what was the subject matter of the chapter in the above mentioned book in Telugu version. However, the translator in Telugu version had taken some liberty to make the reader to understand the intention of the author. Neither the author nor the translator had any intention to humiliate or malign a particular community, in the instant case, the community publicly known as Vysyas/Baniyas/Komaties in Telangana region. The petitioner, being author had traced the history of the said community and their role in the Society and their economic activity which was an academic exercise. The research of the petitioner would show that the above community was mainly involved in the business/sale of products, grain and goods and in that process, their activity in the society. As a part of their business activity, the said community had become prominent in transport and export of grain and goods. The author himself explained as to why he used the word as 5 Dr.GRR,J WP No.36994 of 2017&Batch 'social smugglers' against the said community. The opinion of the author was a part of the scholarly work to which one might differ, but that could not be the basis for filing criminal cases against the petitioner without keeping in mind the freedom of speech and expression ordained under Article 19 (1) (a) of the Constitution of India.
7.2. He further submitted that when the title of the book or contents therein in Telugu were sought to be challenged seeking to prohibit the book itself in Writ Petition (Civil) No.946 of 2017 filed by one Sri KLNV Veeranjaneyulu, a three Judge Bench of the Hon'ble Apex Court headed by the Hon'ble the Chief Justice rendered the judgment on 13.10.2017 observing as follows:
"In this writ petition, the petitioner has prayed for a writ of mandamus to ban the book 'Samajika Smugglurlu Komatollu' written by Professor Kancha Ilaiah and further to ban chapter 9 of a book titled 'Post-Hindu India' and chapter 9 of 'Hindutv-Mukt Bharat".
We do not intend to state the facts in detail. Reason:
Suffice it to say that when an author writes a book, it is his or her right of expression. We do not think that it would be appropriate under Article 32 of the Constitution of India that this Court should ban the book/books. Any request for banning a book of the 6 Dr.GRR,J WP No.36994 of 2017&Batch present nature has to be strictly scrutinized because every author or writer has a fundamental right to speak out ideas freely and express thoughts adequately. Curtailment of an individual writer/ author's right to freedom of speech and expression should never be lightly viewed.
Keeping in view the sanctity of the said right and also bearing in mind that the same has been put on the highest pedestal by this Court, we decline the ambitious prayer made by the petitioner.
The writ petition is, accordingly, dismissed."
7.3. He further submitted that a fair reading of the above judgment would make it clear that any request for banning a book of the present nature had to be strictly scrutinized. Every author or writer had a fundamental right to speak out ideas freely and express thoughts adequately. The Hon'ble Apex Court in view of the sanctity of the said right, declined the petitioner's prayer to ban the book. But, however, a series of criminal petitions were filed against the petitioner for writing/publishing the said book. A fair reading of the complaints lodged by the unofficial respondents would show that the complainants made omnibus allegations without bringing any specific instances constituting the offences alleged against the petitioner. Indian State was primarily a secular State. It had no religion. The constitution did not 7 Dr.GRR,J WP No.36994 of 2017&Batch provide any special treatment for any religion, except stating that all the citizens were having religious freedom to choose any religion of their own belief. The context of the book published in Telugu had to be comprehensively looked into. The allegations made against the petitioner were selective in nature. They were lifted out of context and the complaints were lodged on an untenable basis. The book 'Post-
Hindu India' was in circulation right form 2009. The Telugu version of the book was published in the year 2011. Since 2009, the books were treated only as a work of scholarly nature and acclaimed thesis on the subject. The conclusions arrived by the author in the said books were out of serious study made in that behalf. The same was an academic work. The petitioner had a right to express his views out of his study and communicate the same to the society under Article 19(1)(a) of the Constitution of India. The unofficial respondents had taken one singular book out of one of the chapters of the main book and attributed allegations against the petitioner without understanding the comprehensive nature of the entire book and subject thereof. The issue involved in the present writ petitions was no more resintergra. The Hon'ble Apex Court as well as this Court in a catena of judgments declared that any prohibition of books, or speech was not permissible 8 Dr.GRR,J WP No.36994 of 2017&Batch and violative of Article 19(1)(a) of the Constitution of India and relied upon the following judgments:
1) Manzar Sayeed Khan v. State of Maharashtra and another 1;
2) Life Insurance Corporation of India v. Professor Manbhai D. Shah 2;
3) Mahendra Singh Dhoni v. Yerraguntla
Shyamsundar and another 3;
4) Gajanan Visheshwar Birjur v. Union of India and
others 4;
5) Javed Ahmed Hajam v. State of Maharashtra and
another 5;
6) Shreya Singhal v. Union of India 6
8. He further submitted that registering of multiple FIRs against one issue was totally impermissible and relied upon the judgment of this Court in Akbaruddin Owaisi vs. Government of A.P. 7. He further submitted that various criminal proceedings were maliciously instituted with an ulterior motive for wreaking vengeance on the petitioner and prayed to quash the FIRs or Criminal Cases against the petitioner, as 1 (2007) 5 SCC 1 2 (1992) 3 SCC 637 3 (2017) 7 SCC 760 4 (1994) 5 SCC 550 5 (2024) 4 SCC 156 6 (2015) 5 SCC 1 7 2013 (6) ALT 101 9 Dr.GRR,J WP No.36994 of 2017&Batch being violative of the fundamental rights guaranteed under the Constitution of India.
9. Sri K. Venumadhav, learned counsel for the respondent No.2 in WP No.36998 of 2017 contended that the writ petition was not at all maintainable as writ of Mandamus could only be issued against a statutory authority if the authority was acting against law or not acting in accordance with law in discharging public duty. The contents of the complaint clearly constitute the offences alleged. On considering the same only, the learned Judicial Magistrate of First Class, Korutla had taken cognizance of the offences and numbered as CC 417 of 2017 and issued summons to the petitioner. The words used by the petitioner in the book authored and got published by him would not come under the fundamental rights of freedom of speech enunciated under Article 19(1)(a) of the Constitution of India. They would attract the reasonable restrictions imposed under Article 19 (2) of the Constitution of India.
Therefore, the petitioner was liable for prosecution. The petitioner could not get protection under Article 19(1)(a) of the Constitution of India as he had used offensive words in the book written, published and circulated by him. The truth or otherwise of the contents of the 10 Dr.GRR,J WP No.36994 of 2017&Batch complaint could be decided only after a full-fledged trial and prayed to dismiss the writ petition in limini with costs.
10. Sri Somasi Srinivas, learned counsel for the respondent No.2 in WP Nos.37054 and 41207 of 2017, contended that private complaints were filed basing on the entire book and also derogatory statements of the petitioner made in various TV channels and in public speeches. The learned X Metropolitan Magistrate (now Principal Junior Civil Judge cum Additional Metropolitan Magistrate, Kushaiguda) at Neredmet had taken cognizance of all the offences and issued summons to the accused. When the petitioner has an alternative remedy under Section 482 Cr.P.C. for quashing the CC no.537 of 2017, availing the extraordinary jurisdiction under Article 226 of the Constitution of India was not maintainable under law as decided by the Hon'ble Apex Court in State of Himachal Pradesh v. Prithi Chand 8, State of Bihar v. Sri Rajendra Agarwalla 9, State of Uttar Pradesh v. O.P. Sharma 10 and of the High Court of Manipur in Vinod Kumar Sethi v. State of Manipur 11 and of this Court in M.B. Rajanikanth & another v. The 8 AIR (SC) 1996-323 9 AIR (SCW)-1996-0-591) 10 (AIR (SC)-1996-2-919) 11 (LAWS (MANIP)-2017-7-5) 11 Dr.GRR,J WP No.36994 of 2017&Batch State, Inspector of Police, CBI, ACB, Visakhapatnam & others 12. He further contended that to consider the book as scholarly work, the author should mention atleast the primary source like Government G.Os. and Monographs; secondary source like published research books, research methodology, questionnaires tablet, date of interviews and interviewers names and addresses etc. When the research was pertaining to history, it should be based on evidence of any sort for the purpose of inferences and interpretations. He further contended that the petitioner deliberately with a malicious intention was distorting facts and attacking on faiths. The book published was from his self thought to demoralize Hindu beliefs, but not a research work as claimed by the petitioner. The contents of the book 'Post-Hindu India' or 'Hindu Mukth Bharath' and speeches made by the petitioner were absolute falsehood and baseless. He badly criticized some of the castes of Hindu religion, which would attract hate-speech, which was restricted by Article 19(2) of the Constitution of India, as such, the writ petitions were not maintainable. The petitioner was attributing un-ethical word like 'Smugglers' to a caste and publishing a book itself in the said name would indicate his real intentions. The respondent No.2 and his 12 WP No.18428/ 2009 decided on 09.06.2011.
12
Dr.GRR,J WP No.36994 of 2017&Batch community (caste people) were having equal right to live in the society with social dignity, respect and personal liberty. Through his hate speeches and writings, the petitioner demoralized and demeaning the caste of the respondent No.2. After releasing the said book, agitations were made by Arya Vysya community people. There have been protests, police and court cases and a split among the free speech support groups, erupting huge violence in both the Telugu States i.e. Andhra Pradesh and Telangana, where Arya Vysyas were residing. Thus, the petitioner caused hindrance to public order, decency, morality and disturbed public harmony among different sections of people, demoralized, defamed, assaulted, insulted and wounded the religious beliefs/sentiments of a section of people and provoked other section of people on Arya Vysyas and caused breach of peace in two Telugu States. He also intentionally insulted the modesty of women of certain section of people in his book. Thus, the writ petitioner could not take shelter under Article 19(1)(a) of the Constitution of India and the writ petitions were not maintainable and prayed to dismiss the same with exemplary costs.
13
Dr.GRR,J WP No.36994 of 2017&Batch
11. Sri G.L. Narasimha Rao, learned counsel for the respondent No.4 in WP No.36994 of 2017 also argued on the same lines as that of the learned counsel representing the other un-official respondents.
12. Learned Government Pleader for Home contended that basing on the private complaint forwarded to the SHO, Malkajgiri Police Station, a case in Crime No.770 of 2017 for the offences under Sections 153(A) (a), 153-B (a), 295-A, 509 and Section 3 of the SC & ST (PoA) Act, was registered by the Malkajgiri police and on the private complaint forwarded to the SHO, Korutla, a case in Crime No.537 of 2017 for the offences under Sections 133-A, B, 295-A and 505 IPC was registered by the Korutla Police. As per the sum and substance of the private complaints, the petitioner published a book titled as 'Saamajika Smugglerlu Komatollu'. In that book, he not only targeted Vysya community but also targeted all Hindu communities with a view to create divide and raise rifts in between the Hindu Society. Taking advantage of caste system prevailing in Hindu religion, he intended to outrage the religious feelings of the class by insulting its religion and religious beliefs. His aim was to convert all BC, SC and ST communities into Christianity, so that he would get one lakh crore 14 Dr.GRR,J WP No.36994 of 2017&Batch dollars from the foreign countries. He also insulted the Scheduled Caste people and intended to outrage their religious feelings.
12.1. Learned Government Pleader for Home further submitted that during the course of investigation, the Investigating Officer recorded the statements of the complainant and issued a notice under Section 41-A Cr.P.C. to the petitioner requesting him to appear before the Investigating Agency calling for his explanation. The petitioner gave his reply to the said notice on 26.10.2017. While the explanation was pending consideration, the petitioner approached the court, filed the present writ petitions and obtained interim stay of all further proceedings at the stage of admission, which was being extended from time to time, due to which further course of action was stopped. The Investigation was at the initial stage. The truth or otherwise would come out depending on a full-fledged investigation into the case. Unless a full-fledged investigation was conducted, it could not be said that the petitioner had nothing to do with the criminal acts alleged against him. To establish the offence, the Investigating Agency has to examine some more witnesses and need to collect material evidence. Basing on the total outcome of the investigation, appropriate report under Section 173 Cr.P.C. would be filed before the concerned courts. It was mandatory 15 Dr.GRR,J WP No.36994 of 2017&Batch on the part of the police to register FIR and conduct investigation into the case and file appropriate report before the concerned court. Hence, registration of FIRs was legal, valid and prayed to dismiss the writ petitions by vacating the interim orders granted in the writ petitions.
13. On considering the arguments of all the learned counsel, it is considered necessary to deal with the preliminary objection raised by the learned counsel for the unofficial respondents with regard to maintainability of the writ petitions, particularly invoking the writ of Mandamus, when there is an alternate remedy available to the petitioner under Section 482 of Cr.P.C. The contention of the learned counsel for the respondents in WP Nos.37054 and 41207 of 2017 is that when a remedy is available under Section 482 Cr.P.C., the High Court shall be circumvent to exercise its extraordinary jurisdiction under Article 226 of the Constitution of India for a similar relief and relied upon several judgments of the Hon'ble Apex Court in State of Himachal Pradesh v. Prithi Chand (supra), State of Bihar v. Sri Rajendra Agarwalla (supra), State of Uttar Pradesh v. O.P. Sharma (supra) and of the High Court of Manipur in Vinod Kumar Sethi v. State of Manipur (supra) and of this Court in M.B. Rajanikanth & another v. The State, Inspector of Police, CBI, ACB, Visakhapatnam & others (supra). 16
Dr.GRR,J WP No.36994 of 2017&Batch
14. Learned counsel for the petitioner, on the other hand, relied upon the judgment of the Hon'ble Apex Court in Kapil Agarwal and others v. V. Sanjay Sharma and others 13, wherein it was held that:
"6.1 As observed and held by this Court in a catena of decisions, inherent jurisdiction under Section 482 Cr.P.C. and/or under Article 226 of the Constitution is designed to achieve salutary purpose that criminal proceedings ought not to be permitted to degenerate into weapon of harassment. When the Court is satisfied that criminal proceedings amount to an abuse of process of law or that it amounts to bringing pressure upon accused, in exercise of inherent powers, such proceedings can be quashed.
6.2 As held by this Court in the case of Parbatbhai Aahir v. State of Gujarat (2017) 9 SCC 641, Section 482 Cr.P.C. is prefaced with an overriding provision. The statute saves the inherent power of the High Court, as a superior court, to make such orders as are necessary (i) to prevent an abuse of the process of any Court; or (ii) otherwise to secure the ends of justice. Same are the powers with the High Court, when it exercises the powers under Article 226 of the Constitution."
15. Article 226 of the Constitution of India encapsulates wider powers to be exercised by the High Court than Section 482 Cr.P.C. A 13 LiveLaw 2021 SC 123 17 Dr.GRR,J WP No.36994 of 2017&Batch writ can be issued against the State in any circumstance whereas Section 482 Cr.P.C. can be used only to cases or procedures under the Code. Article 226 of the Constitution gives wide powers to the High Court to see that the processes of the Courts below are not abused or otherwise to secure the ends of justice. The directions which can be issued under Section 482 Cr.P.C. can also be issued by way of a writ petition under Article 226. A Writ Petition under Article 226 of the Constitution can be filed in the High Court when there is a violation of fundamental right or in cases where an individual seeks the courts intervention to quash or set aside the criminal proceedings initiated against him. Thus, a writ petition under Article 226 of the Constitution of India is maintainable for quashing FIRs/Criminal proceedings enforcing the rights of an accused or any other matter related to the criminal law to safeguard the fundamental rights of the litigants.
16. Sri K. Venumadhav, the learned counsel for the respondent No.2 in WP No.36998 of 2017 contended that a writ of Mandamus was not maintainable as the same could be issued only against a statutory authority, if the authority was acting against law or not acting in accordance with law while discharging public duty and relied upon the 18 Dr.GRR,J WP No.36994 of 2017&Batch judgment of the High Court of Delhi in Prakash Singh v. Union of India and another 14, wherein it was held that:
"The writ of mandamus is not generally a remedy against private wrongs. The scope of writ of mandamus is against the private authority which might be performing a public duty limited to the enforcement of the public duty, and this Court cannot interfere with the internal management of a private body. It is well settled that a writ of mandamus lies only for the purpose of a public or statutory duty. Writs are issued for the performance of public duties. Though Article 226 of the Constitution of India is worded in such a way that a writ of mandamus could be issued even against a private authority but such private authority must be discharging a public function and the right sought to be enforced must be a public duty."
17. As seen from the present writ petitions, the writ petitions are filed seeking relief against the official respondents, who registered cases against the petitioner basing on the complaints lodged by the unofficial respondents. Thus, these writ petitions are filed against the respondents, who were performing public duty. Multiple cases are filed by the complainants from various places of the state alleging that their religious feelings were hurt due to the publication of the present book or 14 2022 LawSuit (Del) 1865 19 Dr.GRR,J WP No.36994 of 2017&Batch due to the opinion expressed by the author in the above book or in various debates or public speeches made by him, some of which were referred to police under Section 156(3) of Cr.P.C. and some of which were directly taken cognizance by the Magistrates.
18. This Court in a batch of Criminal Petitions in Akbaruddin Owaisi v. The State of Andhra Pradesh (7 supra) after considering the various judgments of the Hon'ble Apex Court in T.T.Antony v. State of Kerala 15 held that:
"24. There can be no second FIR and no fresh investigation on receipt of every subsequent information in respect of the same cognizable offence or same occurrence, giving rise to one or more cognizable offences."
25. From the above, it is clearly discernable that according to the Supreme Court, the sweeping power of investigation does not warrant subjecting a citizen each time to a fresh investigation by the police 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) Cr.P.C. The Court observed that case of fresh investigation based on the consequent or successive FIRs not being counter-case, 15 (2001) 6 SCC 181 20 Dr.GRR,J WP No.36994 of 2017&Batch 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 final report under Section 173 (2) has been forwarded to the Magistrate, may be a fit case for exercise of power under Section 482 Cr. P.C., or under Articles 226/227 of the Constitution. In the circumstances of that case, it was held that registration of the second FIR was not valid and consequently investigation made pursuant thereto was of no legal consequences. Those were accordingly quashed.
29. In Arnab Ranjan Goswami vs. Union of India, petitioner had complained that following a broadcast on Republic Bharat TV on 21.04.2020, multiple FIRs and criminal complaints were lodged against him, not only in the State of Maharashtra but in different States and Union Territories. The first FIR was lodged at Sadar Police Station, Nagpur City, Maharashtra whereafter as many as 14 other FIRs and complaints were lodged in different places. Delineating the aspect of lodging of subsequent FIRs, Supreme Court on an analysis of various judgments including in T.T. Antony's case (2 supra) and in Upkar Singh vs. Ved Prakash, held that there can be no second FIR when the information concerns the same cognizable offence alleged in the first FIR or the same occurrence or the incident which gives rise to one or more cognizable offences. Barring situations in which a counter-case is filed, a fresh investigation or a second FIR on the basis of the same or connected cognizable offence 21 Dr.GRR,J WP No.36994 of 2017&Batch would constitute an abuse of the statutory power of investigation and may be a fit case for exercise of power either under Section 482 Cr.P.C. or under Articles 226/227 of the Constitution. However, it has been clarified that 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 out under both of them by the same investigating agency. In the facts of that case, it was found that all the FIRs or complaints lodged in diverse jurisdiction arose out of one and the same incident, i.e., broadcast by the petitioner in Republic Bharat on 21.04.2020.
Therefore, all the other FIRs/complaints were quashed leaving open the investigation carried out by Sadar Police Station, Nagpur City which was however transferred to NM Joshi Marg Police Station in Mumbai.
19. Thus, a Writ Petition for quashing of FIRs or complaints lodged in diverse jurisdictions arising out of one and the same incident is maintainable under Article 226 of Constitution, when it is considered as an abuse of the statutory power of investigation.
20. Thus, this Court does not find any merit in the contention of the learned counsel for the respondents that the writ petitions are not maintainable. The contention of the learned counsel for the unofficial respondents in W.P.No.36998 of 2017 that writ of Mandamus could not 22 Dr.GRR,J WP No.36994 of 2017&Batch be issued for quashing of criminal cases, wherein the Courts have taken cognizance of the private complaints is also considered by this Court. As the petitioner had sought for issuance of an appropriate writ and as the Constitutional Courts are constituted for the protection and guarantee of fundamental rights of citizens, it is considered not a good ground to refuse to entertain the petitions. The mere existence of an adequate alternative legal remedy is also considered as not a sufficient ground for throwing out these petitions, as the petitioner is contending that his fundamental right under Article 19(1)(a) of the Constitution of India is violated, and criminal cases were registered against him in violation of his fundamental right.
21. The contention of the learned counsel for the petitioner was that the petitioner was an acclaimed author, he was a Retired Professor at the Department of Political Science, Osmania University and a Professor in Maulana Azad National Urdu University (MANUU), Telangana. He was a prolific writer authored several books and regularly contributes articles to national newspapers and magazines. He was the author of the book "Why I am not a Hindu', a thought provoking critique of Brahmanism and caste system in India and challenges Hinduisms interpretation of history, which received reviews 23 Dr.GRR,J WP No.36994 of 2017&Batch from various international newspapers, which appreciated and acknowledged the book. The book "Post-Hindu India" (A Discourse on Dalit-Bahujan Socio-Spiritual and Scientific Revolution) published by SAGE publishers, an international publishing house, received critical acclaim. The widely circulated Hindu Newspaper had acclaimed it as 'a war against ignorance'. The Economic and Political Weekly acclaimed it as 'An argument to break the caste barriers that separated the community groups, in the belief that the shared characters of a life of production will provide an experiential basis for the common battle against upper-caste hegemony'. It was recognized as a work challenging Hinduism's interpretation of history, with a virulent attack on caste politics which takes a refreshing look at the necessity of encouraging indigenous scientific thought for the sake of national progress and that it establishes Hinduism as a 'backward' religion that suppresses the latent scientific and productive potential of the Dalit-Bahujan communities. The critics acclaimed that as per the author, the oppressive system of spiritual fascism is detrimental to both the future of religion and the nation-state and the author criticizes the idea of spiritual justice or varna dharma used to justify the caste system as rooted in spiritual inequality and that on micro-analytical level, the book was considered as a 24 Dr.GRR,J WP No.36994 of 2017&Batch thorough study of productive knowledge systems of Dalit-Bahujan communities of Andhra Pradesh and provides a day to day analysis of the scientific technological processes and events at work in the life of a member of these communities. On a macro level, it shows how Hinduism fails to negotiate between faith and reason, unlike other major religions of the world. It was considered as a work which critiques the intellectual imagination of the dominant communities and inspires the marginalized. It is considered as a work of immense socio-political interest which would appeal to academicians and to all those who are concerned about contemporary India's polity and social fabric.
22. Learned counsel for the petitioner also filed a review given by Mark Tully, a well known author and Padmasree & Padma Bhushan awardee, who stated that:
"This is a startling book, revealing the extent of the anger and hurt of the author, a well-known OBC academic and social activist. It's a polemic on what his experiences as an OBC as well as his academic research on Dalit and Tribal communities have led him to see as a centuries-old Brahmin Conspiracy. The conspiracy to subjugate the Dalits, the Tribals and the Shudras too. Kancha Ilaiah equates Hinduism with Brahminism. He says, "For any external observer Hinduism is nothing but an institutionalized 25 Dr.GRR,J WP No.36994 of 2017&Batch image of the Brahmin self; although some people say it is a religion that encompasses all the castes."
Ilaiah attacks what he considers to be Hinduism for imposing an order on society which is neither egalitarian nor pluralist. The caste system is responsible for this imposition, and it is still in place, he says, because democracy has not affected the domination of the upper castes. They are accused of being "spiritual fascists", and "intellectual goondas". Ilaiah maintains that the spiritual fascism was so constructed by Brahmins that those who were its victims could not comprehend its essence. In other words, a confidence trick has been played on them. He calls the Dalits, Tribals and the Shudras as Dalit- Bahujans and sees them as the productive sections of society while regarding the upper castes as mere parasites. If they had not fostered the caste system and prevented intermarriage, Ilaiah believes there would have been an interchange of the technology practiced by different castes in their professions and India would have become a scientific society. He quotes as an example of the Dalit's technology of tanning animal skins and manufacturing shoes and other leather products. Brahminism is seen by him as anti-scientific, and disinterested even in such basic subjects as agriculture. He accuses it of seeing "knowledge as ignorance, and ignorance as knowledge", and doesn't credit it with a single scientific discovery. In fact he believes the position is even worse than that. The Brahmins are accused of 26 Dr.GRR,J WP No.36994 of 2017&Batch stealing the discoveries of the Dalit-Bahujans. Ilaiah maintains that zero was discovered by cattle herders and many Ayurvedic medicines by Shudras, Dalits or Tribals, but Brahmins have claimed them as their own. Ilaiah does not merely concentrate on the economic and other material problems created by the caste system. He believes it is essential for the Dalits, Tribals and Shudras to acquire a spirituality which is egalitarian and pluralist. He says, "The first major agenda for post-Hindu India is to build a spiritual democratic basis... A religious structure that guarantees their right to spiritual equality." He compares Hinduism with Christianity, Islam and Buddhism, which he sees as egalitarian and pluralist religions, and lays great emphasis on Ambedkar's rejection of Hinduism and adoption of Buddhism. But the repressive role that all these religions have played at times, and some would argue still do play, particularly their repression of women, is not taken into consideration.
The last chapter of the book is called Post-Hindu India. Ilaiah believes Hinduism's days are numbered, and even talks of a civil war in which Hinduism will be defeated by the combined forces of the Dalit- Bahujans. When that happens, he believes "the regeneration of India begins in multiple levels of Indian society. The society and technology that the productive masses nurtured for so long will take a new life". But Ilaiah recognizes that the Shudras have not yet rejected Hinduism partly because those he calls the 27 Dr.GRR,J WP No.36994 of 2017&Batch Brahminic forces linked Independence and democracy with that religion. So there is still one major fissure in the Dalit-Bahujan alliance he foresees. Nor of course is there unity yet within the Dalit, Shudra, or Tribal communities themselves. A recent report from rural Gujarat pointed out that Dalits of the more highly regarded castes treat other Dalits as untouchable while the political geography of Bihar and Uttar Pradesh is evidence that the OBCs are not united.
Because this book is a polemic, it's one-sided and so loses some of its impact. At one stage Ilaiah suggests that because Hinduism is not egalitarian and pluralist, it cannot last long. But it has, and that must surely be because it has positive attributes. Ironically, just at the time Ilaiah is prophesying the end of Hinduism, admiration of its spiritual teaching and practices is spreading in other parts of the world. Admittedly the same cannot be said for the caste system which has few defenders anywhere, and Ilaiah would argue that the caste system is the essence of Hinduism. But surely the Gita, revered by Gandhi as his Bible, and by distinguished thinkers of different faiths too, cannot be written off just because it is set in the context of a war. Now that Ilaiah has got his polemic off his chest, might he not think of publishing a reasoned dialogue between himself and those who do not see Hinduism as wholly inimical to egalitarian democracy? The danger is that many people will write off this book as extremist. It is a danger because we need to be aware of the depth of anger and hurt it reveals. I have to say 28 Dr.GRR,J WP No.36994 of 2017&Batch that, when I look back on what I have written, I have not been as aware of this as I should have been."
23. Learned Senior Counsel for the petitioners had provided details wherein the book was recommended by various universities as part of their syllabus. The Delhi University (DU) Political Science Department has included this book in its Post Graduate syllabus. The Mahatma Gandhi Antarrashtriya Hindi Vishwavidyalaya had included it in its integrated Masters Programme in Social Sciences. Doctor Harisingh Gour Vishwavidyalaya, Sagar, MP (A Central University) had also recommended the book in its Syllabus for Post Graduation Programme under CBCS conducted by the Department of Political Science and Public Administration, School of Humanities and Social Sciences for the year 2018-19. The Department of Sociology in University of Mumbai had also recommended it in its Syllabus as a part of reading Contemporary Indian Social Scientists along with the books of Amartya Sen in Economics, Uma Chakravarthy in History and Sudhir Kakkar in Social Psychology. The books of the petitioner were recommended in its Syllabus in Political Science. Dr. Babasaheb Ambedkar Marathwada University, Aurangabad, Department of English recommended its reading in its paper 'Literature of the Oppressed'. 29
Dr.GRR,J WP No.36994 of 2017&Batch
24. Thus, this book is considered as highly academic and scholarly work by various Universities.
25. One of the Chapters of the book was published in Telugu by EMESCO Publications, Hyderabad in 2011. The complainants were offended by the use of the word 'Social Smugglers' against one community i.e. Vysyas and lodged complaints against him in various police stations considering that the petitioner was insulting Vedas, Geetha and Upanishads and was criticizing the Gods and Goddesses of the Hindus and was making demoralizing assault of Hindu women with an intent to outrage their modesty and that he insulted the Father of the Nation Mahatma Gandhi and the first Prime Minister Jawaharlal Nehru as a relation of Brahmin and Komati and tried to bring a rift in between Brahmins and Vysyas and that he also made several derogatory arguments with Sri Swami Paripoornanda in TV Channels insulting Hindutwa and Hindu Gods and its caste system and that it caused hurt to their religious feelings and creating rifts in between the castes of Hindu Society.
26. The person, who lodged the complaint in CC No.537 of 2017, which is the subject matter of WP No.41207 of 2017 on the file of the X Metropolitan Magistrate, Malkajgiri at Neredmet has shown his caste as 30 Dr.GRR,J WP No.36994 of 2017&Batch Vysya and that he was a Hindu by religion. The complainant in Crime No.438 of 2017, which is the subject matter of WP No.37054 of 2017 on the file of the SHO, I-Town Police Station, Karimnagar, was an Advocate. It was also on the same lines that the author was making allegations against Hindu Gods Ganapathi and Kubera and on the entire Vysya community commenting on their vegetarianism and that they were ready to be slaves to the Britishers to protect their personal property, wherein his feelings as a member of Vysya community were hurt and that it would constitute the offences under Sections 153-A, 295-A, 325, 500, 504, 505 of IPC.
27. Likewise the complainant in CC No.417 of 2017 on the file of the Judicial Magistrate of First Class, Korutla, Jagtial District also stated that he belonged to Vysya Community and that his feelings were hurt by the opinion of the author in the book expressed against Vysya community. He stated that as the police failed to register the case, he lodged the private complaint and the same was taken cognizance by the Court and numbered as CC 417 of 2017 which was the subject matter of WP No.36998 of 2017.
28. In WP No.36994 of 2017, the complainant described himself as a student belonging to Schedule Caste and lodged the complaint 31 Dr.GRR,J WP No.36994 of 2017&Batch stating that the publication of the book by the author titled as "Samajika Smugglerlu Komatollu" not only targeted Vysya community but also all Hindu communities with a view to divide and raise rifts in between the Hindu Society by taking advantages of caste systems in Hindutva, intended to outrage the religious feelings of any class by insulting its religion or religious beliefs with an aim to convert all BC, SC and ST community into Christianity, so that he would get one lakh crore dollars from foreign countries. He also stated that the author insulted Scheduled Caste people, basing on which a case was registered as FIR No.770 of 2017 by Malkajgiri Police of Rachakonda District for the offences under Sections 153-A(a), 153-B(b), 295-A, 509 and Section 3 of the SC & ST (PoA) Act. A private complaint was referred to the police, which was registered as the above crime.
29. The contention of the learned Senior Counsel for the petitioner was that to attract the offence under Section 153-A IPC, intention to cause disorder or incite the people to violence is sine qua non and the prosecution had to prove prima facie the existence of mens rea on the part of the accused and relied upon the judgment of 32 Dr.GRR,J WP No.36994 of 2017&Batch the Hon'ble Apex Court in Manzar Sayeed Khan v. State of Maharashtra and another 16, wherein it was held that:
"16. Section 153A of IPC, as extracted hereinabove, covers a case where a person by words, either spoken or written, or by signs or by visible representations or otherwise, promotes or attempts to promote, disharmony or feelings of enmity, hatred or ill-will between different religious, racial, language or regional groups or castes or communities or acts prejudicial to the maintenance of harmony or is likely to disturb the public tranquility. The gist of the offence is the intention to promote feelings of enmity or hatred between different classes of people. The intention to cause disorder or incite the people to violence is the sine qua non of the offence under Section 153A of IPC and the prosecution has to prove prima facie the existence of mens rea on the part of the accused. The intention has to be judged primarily by the language of the book and the circumstances in which the book was written and published. The matter complained of within the ambit of Section 153A must be read as a whole. One cannot rely on strongly worded and isolated passages for proving the charge nor indeed can one take a sentence here and a sentence there and connect them by a meticulous process of inferential reasoning.
17. In Ramesh Chotalal Dalal v. Union of India & Others [AIR 1988 SC 775], this Court held that TV serial "Tamas"
did not depict communal tension and violence and the provisions of Section 153A of IPC would not apply to it. It 16 2007 (5) SCC (1) 33 Dr.GRR,J WP No.36994 of 2017&Batch was also not prejudicial to the national integration falling under Section 153B of IPC. Approving the observations of Vivian Bose, J. in Bhagvati Charan Shukla v. Provincial Government [AIR 1947 Nagpur 1], the Court observed that the effect of the words must be judged from the standards of reasonable, strong-minded, firm and courageous men, and not those of weak and vacillating minds, nor of those who scent danger in every hostile point of view. It is the standard of ordinary reasonable man or as they say in English Law, "the man on the top of a clapham omnibus". (Emphasis supplied).
18. Again in Bilal Ahmed Kaloo v. State of A.P. [(1997) 7 SCC 431], it is held that the common feature in both the Sections, viz., Sections 153A and 505 (2), being promotion of feeling of enmity, hatred or ill-will "between different"
religious or racial or linguistic or regional groups or castes and communities, it is necessary that at least two such groups or communities should be involved. Further, it was observed that merely inciting the feeling of one community or group without any reference to any other community or group cannot attract either of the two Sections."
30. Thus to attract the offences under Sections 153-A and 505 IPC, as per the judgment of the Hon'ble Apex Court, there must be involvement of atleast two groups or communities and merely inciting the feelings of one community or group without any reference of any community or any other group would not attract either of the two sections.
34
Dr.GRR,J WP No.36994 of 2017&Batch
31. In the present cases, all the complainants belong to one religion i.e. Hindu religion and alleged that their feelings were hurt by the opinion of the author. But, there is no incitement of the feelings of any other community against the said particular community to attract the offences under Sections 153-A and 505 IPC. The Hon'ble Apex Court also specified that the intention has to be judged primarily by the language of the book and the matter complained of to fall within the ambit of Section 153-A, must be read as a whole and isolated passages cannot be relied on for proving the charge. The complainants had picked up some of the isolated passages in one of the chapter to lodge complaints against the petitioner herein. When the book "Post-Hindu India" as a whole is considered, it criticizes not only one of the castes like Vysyas, but also all other dominant castes. One caste or community stating that their religious feelings were hurt would not attract the offence under Section 153-A IPC. The book as a whole also would not disclose the author inciting any of the caste against the other castes but criticizes how the dominant communities were suppressing marginalized communities. The book had not incited the persons belonging to other religions like Christianity or Islam against Hindus or any of the castes in one community against the people of other castes. The 35 Dr.GRR,J WP No.36994 of 2017&Batch complaint being lodged by a Scheduled Caste person in one case would disclose that he was not incited against the people of other castes, but, he also felt insulted in the same manner as that of the people of other castes.
32. Learned Senior Counsel for the petitioner also relied upon the judgment of the Hon'ble Apex Court in Javed Ahmad Hajam v. State of Maharashtra and another 17, wherein the Hon'ble Apex Court extracted paras 8 to 10 of its judgment in Patricia Mukhim v. State of Meghalaya, as follows:
"8. "It is of utmost importance to keep all speech free in order for the truth to emerge and have a civil society."-- Thomas Jefferson. Freedom of speech and expression guaranteed by Article 19(1)(a) of the Constitution is a very valuable fundamental right. However, the right is not absolute. Reasonable restrictions can be placed on the right of free speech and expression in the interest of sovereignty and integrity of India, security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of Court, defamation or incitement to an offence. Speech crime is punishable under Section 153- A IPC. Promotion of enmity between different groups on grounds of religion, race, place of birth, residence, language, etc. and doing acts prejudicial to maintenance of harmony is punishable with imprisonment which may extend to three 17 (2024) 4 SCC 156 36 Dr.GRR,J WP No.36994 of 2017&Batch years or with fine or with both under Section 153-A. As we are called upon to decide whether a prima facie case is made out against the appellant for committing offences under Sections 153-A and 505(1)(c), it is relevant to reproduce the provisions which are as follows:
* * *
9. Only where the written or spoken words have the tendency of creating public disorder or disturbance of law and order or affecting public tranquility, the law needs to step in to prevent such an activity. The intention to cause disorder or incite people to violence is the sine qua non of the offence under Section 153-A IPC and the prosecution has to prove the existence of mens rea in order to succeed.
[Balwant Singh v. State of Punjab, (1995) 3 SCC 214].
10. The gist of the offence under Section 153-A IPC is the intention to promote feelings of enmity or hatred between different classes of people. The intention has to be judged primarily by the language of the piece of writing and the circumstances in which it was written and published. The matter complained of within the ambit of Section 153- A must be read as a whole. One cannot rely on strongly worded and isolated passages for proving the charge nor indeed can one take a sentence here and a sentence there and connect them by a meticulous process of inferential reasoning [Manzar Sayeed Khan v. State of Maharashtra, (2007) 5 SCC 1)."
and held that:
37
Dr.GRR,J WP No.36994 of 2017&Batch "10. Now, coming back to Section 153-A, clause (a) of sub-
section (1) of Section 153-A of the IPC is attracted when by words, either spoken or written or by signs or by visible representations or otherwise, an attempt is made to promote disharmony or feelings of enmity, hatred or ill-will between different religious, racial, language or regional groups or castes or communities. The promotion of disharmony, enmity, hatred or ill will must be on the grounds of religion, race, place of birth, residence, language, caste, community or any other analogous grounds. Clause (b) of sub-section (1) of Section 153-A of the IPC will apply only when an act is committed 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 disturb the public tranquillity."
33. The Hon'ble Apex Court further held that:
"14. The right to dissent in a legitimate and lawful manner is an integral part of the rights guaranteed under Article 19(1)(a). Every individual must respect the right of others to dissent. An opportunity to peacefully protest against the decisions of the Government is an essential part of democracy. The right to dissent in a lawful manner must be treated as a part of the right to lead a dignified and meaningful life guaranteed by Article 21. But the protest or dissent must be within four corners of the modes permissible in a democratic set-up. It is subject to reasonable restrictions imposed in accordance with clause (2) of Article 19. In the present case, the appellant has not at all crossed the line.38
Dr.GRR,J WP No.36994 of 2017&Batch
15. The High Court has held that the possibility of stirring up the emotions of a group of people cannot be ruled out. The appellant's college teachers, students, and parents were allegedly members of the WhatsApp group. As held by Vivian Bose, J, the effect of the words used by the appellant on his WhatsApp status will have to be judged from the standards of reasonable women and men. We cannot apply the standards of people with weak and vacillating minds. Our country has been a democratic republic for more than 75 years. The people of our country know the importance of democratic values. Therefore, it is not possible to conclude that the words will promote disharmony or feelings of enmity, hatred or ill-will between different religious groups. The test to be applied is not the effect of the words on some individuals with weak minds or who see a danger in every hostile point of view. The test is of the general impact of the utterances on reasonable people who are significant in numbers. Merely because a few individuals may develop hatred or ill will, it will not be sufficient to attract clause (a) of sub-section (1) of Section 153-A of the IPC.
17. Now, the time has come to enlighten and educate our police machinery on the concept of freedom of speech and expression guaranteed by Article 19(1)(a) of the Constitution and the extent of reasonable restraint on their free speech and expression. They must be sensitised about the democratic values enshrined in our Constitution."
34. The Hon'ble Apex Court in Life Insurance Corporation of India v. Prof.Manubhai D. Shah 18 further held that: 18
(1991) 3 SCC 637 39 Dr.GRR,J WP No.36994 of 2017&Batch "8. The words "freedom of speech and expression" must, therefore, be broadly construed to include the freedom to circulate one's views by words of mouth or in writing or through audio-visual instrumentalities. It, therefore, includes the right to propagate one's views through the print media or through any other communication channel e.g. the radio and the television. Every citizen of this free country, therefore, has the right to air his or her views through the printing and/or the electronic media subject of course to permissible restrictions imposed under Article 19(2) of the Constitution.
The print media, the radio and the tiny screen play the role of public educators, so vital to the growth of a healthy democracy. Freedom to air one's views is the lifeline of any democratic institution and any attempt to stifle, suffocate or gag this right would sound a death-knell to democracy and would help usher in autocracy or dictator-ship. It cannot be gainsaid that modern communication mediums advance public interest by informing the public of the events and developments that have taken place and thereby educating the voters, a role considered significant for the vibrant functioning of a democracy. Therefore, in any set-up, more so in a democratic set-up like ours, dissemination of news and views for popular consumption is a must and any attempt to deny the same must be frowned upon unless it falls within the Mischief of Article 19(2) of the Constitution. It follows that a citizen for propagation of his or her ideas has a right to publish for circulation his views in periodicals, magazines and journals or through the electronic media since it is well known that these communication channels are great purveyors of news and views and make considerable impact on the minds of the readers and 40 Dr.GRR,J WP No.36994 of 2017&Batch viewers and are known to mould public opinion on vital issues of national importance. Once it is conceded, and it cannot indeed be disputed, that freedom of speech and expression includes freedom of circulation and propagation of ideas, there can be no doubt that the right extends to the citizen being permitted to use the media to answer the criticism levelled against the view propagated by him. Every free citizen has an undoubted right to lay what sentiments he pleases before the public; to forbid this, except to the extent permitted by Article 19(2), b would be an inroad on his freedom. This freedom must, however, be exercised with circumspection and care must be taken not to trench on the rights of other citizens or to jeopardize public interest. It is manifest from Article 19(2) that the right conferred by Article 19(1)(a) is subject to imposition of reasonable restrictions in the interest of, amongst others, public order, decency or morality or in relation to defamation or incitement to an offense. It is, therefore, obvious that subject to reasonable restrictions placed under Article 19(2) a citizen has a right to publish, circulate and disseminate his views and any attempt to thwart or deny the same would offend Article 19(1)(a).
35. In Mahendra Singh Dhoni v. Yerraguntal Shyamsundar and Ors. 19, the Hon'ble Apex Court while considering whether the allegations made in the complaint constitute an offence under Section 295-A IPC, held that:
19
2017 (7) SCC 760 41 Dr.GRR,J WP No.36994 of 2017&Batch "6. It is clear as crystal that Section 295-A does not stipulate everything to be penalized and any and every act would amount to insult or attempt to insult the religion or the religious beliefs of a class of citizens. It penalises only those acts of insults to or those varieties of attempts to insult the religion or religious belief of a class of citizens which are perpetrated with the deliberate and malicious intention of outraging the religious feelings of that class of citizens.
Insults to religion offered unwittingly or carelessly or without any deliberate or malicious intention to outrage the religious feelings of that class do not come within the section. The Constitution Bench has further clarified that the said provision only punishes the aggravated form of insult to religion when it is perpetrated with the deliberate and malicious intention of outraging the religious feelings of that class. Emphasis has been laid on the calculated tendency of the said aggravated form of insult and also to disrupt the public order to invite the penalty.
13. Before parting with the case, we would like to sound a word of caution that the Magistrates who have been conferred with the power of taking cognizance and issuing summons are required to carefully scrutinize whether the allegations made in the complaint proceeding meet the basic ingredients of the offence; whether the concept of territorial jurisdiction is satisfied; and further whether the accused is really required to be summoned. This has to be treated as the primary judicial responsibility of the court issuing process."
36. Section 196 Cr.P.C., prescribes that no Court shall take cognizance of the offences under Sections 153A, 295A or 42 Dr.GRR,J WP No.36994 of 2017&Batch sub-section (1) of Section 505 of IPC, except with the previous sanction of the Central Government or of the State Government, which reads as follows:
"196. Prosecution for offenses against the State and for criminal conspiracy to commit such offence.-(1) No Court shall take cognizance of-
(a) any offense punishable under Chapter VI or under Section 153-A, Section 295-A or sub-section (1) of Section 505 of the Penal Code, 1860, or
(b) a criminal conspiracy to commit such offence, or
(c) any such abetment, as is described in Section 108-Aof the Penal Code, 1860,except with the previous sanction of the Central Government or of the State Government.
(1-A) No Court shall take cognizance of-
(a) any offense punishable under Section 153-B or sub- section (2) or sub-section (3) of Section 505 of the Penal Code, 1860, oг
(b) a criminal conspiracy to commit such offence, except with the previous sanction of the Central Government or of the State Government or of the District Magistrate.
(2) xxxx (3) The Central Government or the State Government may, before according sanction under sub-section (1) or sub-section (1-A) and the District Magistrate may, before according sanction under sub-section (1-A) and the State Government or the District Magistrate may, before giving consent under sub-section (2), order a preliminary investigation by a police officer not being below the rank of Inspector, in which case such police office shall have the powers referred to in sub-section (3) of Section 155." 43
Dr.GRR,J WP No.36994 of 2017&Batch
37. Thus, procedural safeguards are provided to conduct preliminary investigation by a police officer not below the rank of Inspector before according sanction to be issued by the respective governments. The courts are also directed not to take cognizance of these offences except with the previous sanction of the Central or State Governments. But, in the present case, no preliminary investigation was conducted and no sanction was obtained from the respective Governments by the Courts before taking cognizance of the offences under Sections 153A, 295 and 505 IPC, which was against the procedural safeguards provided under Cr.P.C.
38. Section 3(1)(r) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 also requires intentional insult of a scheduled caste or scheduled tribe member by a non-member in any place within the public view to attract the rigor of that section. The Hon'ble Apex Court in Pradnya Pradeep Kenkar and others v. State of Maharashtra 20 and Balu S/o. Bajirao Galande v. State of Maharashtra and another 21 observed that:
"It is thus clear that the word "public" not only relates to the location defined by the word "place" but also to the subjects 20 2005 (3) MHLJ 368 21 LAWS (BOM)-2006-4-104 44 Dr.GRR,J WP No.36994 of 2017&Batch witnessing the incidence of insult or intimidation to the member of scheduled caste or tribe. Presence of both the ingredients is absolutely necessary for making out the offence of atrocity. Abuse, insult or humiliation must take place in the presence of or in the proximity of atleast one independent person."
39. As seen from the contents of the complaints lodged by the unofficial respondents, none of the ingredients of the above offences would attract. Intentional insult or intimidation with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe person in any place within public view is required to attract the offence under Section 3(1)(r) of SC & ST (PoA) Act, 1989. Likewise, Section 295A or Section 153A IPC does not penalize any or every act that tantamount to insult or attempt to insult the religion or the religious beliefs of a class of citizens. It penalises only those acts of insults to or those varieties of attempts to insult the religion or religious belief of a class of citizens which are perpetrated with the deliberate and malicious intention of outraging the religious feelings of that class. It only punishes the aggravated form of insult to religion when it is perpetrated with the deliberate and malicious intention of outraging the religious feelings to disrupt the public order and penalises such activities. 45
Dr.GRR,J WP No.36994 of 2017&Batch
40. In Gajanan Visheshwar Birjur v. Union of India 22, while considering the books imported containing speeches and works of Mao, besides the works of Marx, Engels and Lenin, which were specifically banned under notification No.77, to confiscate the same, Justice B. P. Jeevan Reddy held that:
"Before parting with this case, we must express our unhappiness with attempts at thought control in a democratic society like ours. Human history is witness to the fact that all evolution and all progress is because of power of thought and that every attempt at thought control is doomed to failure. An idea can never be killed. Suppression can never be a successful permanent policy. Any surface serenity it creates is a false one. It will erupt one day. Our Constitution permits a free trade, if we can use the expression, in ideas and ideologies. It guarantees freedom of thought and expression - the only limitation being a law in terms of Clause (2) of Article 19 of the Constitution. Thought control is alien to our constitutional scheme. To the same effect are the observations of Robert Jackson, J. In American Communications Association v. Douds 339 U.S. 382, 442-43 [1950], with reference to the U.S. Constitution:
"Thought control is a copyright of totalitarianism, and we have no claim to it. It is not the function of our Government to keep the citizen from falling into error; it is the function of the citizen to keep the Government from falling into error. We could justify any censorship only when the censors are better shielded against error than the censored."22
1994 (5) SCC 550 46 Dr.GRR,J WP No.36994 of 2017&Batch
41. In Shreya Singhal v. Union of India 23, the Hon'ble Supreme Court held that:
"15. Article 19(1)(a) protects not only the right of primary expression but also freedom of secondary propagation of ideas and the freedom of circulation. The freedom of speech and expression includes the right to acquire information and to disseminate it. It is submitted that freedom of speech and expression is necessary for self-expression, which is an important means of attaining free conscience and self- fulfillment. .
16. Freedom of speech and expression of opinion are of paramount importance to a democracy. There is nothing in Article 19(2) which permits the State to abridge this right on the ground of conferring benefits upon the public in general. It is also not open to the State to curtail or infringe the freedom of speech of one for promoting the general welfare of a section or a group of people, unless such action could be justified under a law contemplated under one of the heads of Article 19 (2). "
It was further held that:
"Interpretation of law cannot be based on community standards."23
2015 (5) SCC (1) 47 Dr.GRR,J WP No.36994 of 2017&Batch
42. While also referring to a case in S. Khushboo v. Kanniammal [AIR 2010 SC 3196], it was held that:
"47. In the present case, the substance of the controversy does not really touch on whether premarital sex is socially acceptable. Instead, the real issue of concern is the disproportionate response to the appellant's remarks. If the complainants vehemently disagreed with the appellant's views, then they should have contested her views through the news media or any other public platform. The law should not be used in a manner that has chilling effects on the `freedom of speech and expression'."
43. Thus, it was observed by the Hon'ble Apex Court that "if the complainants disagree with the views of the appellant, they should have contested their views through any public platform, but should not use the law in a manner that has effect on the freedom of speech and expression, which is also applicable to the facts of the present case.
44. Every free citizen has a freedom to air one's views. Every citizen has an undoubted right to express his views. Freedom to air one's views is the lifeline of any democratic institution. Any attempt to stifle, suffocate or gag this right would sound a death-knell to democracy and would help usher in autocracy or dictatorship, as laid down by the Hon'ble Apex Court in Life Insurance Corporation of India v. Manubhai D. Shah (2 supra). The Hon'ble Apex Court 48 Dr.GRR,J WP No.36994 of 2017&Batch always placed a broad interpretation on the value and content of Article 19(1)(a), making it subject only to the restrictions permissible under Article 19(2).
45. A three Judge Bench of the Hon'ble Apex Court in Secretary, Ministry of Information & Broadcasting, Government of India and others v. Cricket Association of Bengal and others 24, held that:
"We may now summarise the law on the freedom of speech and expression under Article 19(1)(a) as restricted by Article 19(2). The freedom of speech and expression includes right to acquire information and to disseminate it. Freedom of speech and expression is necessary, for self expression which is an important means of free conscience and self fulfilment. It enables people to contribute to debates of social and moral issues. It is the best way to find a truest model of anything, since it is only through it, that the widest possible range of ideas can circulate. It is the only vehicle of political discourse so essential to democracy. Equally important is the role it plays in facilitating artistic and scholarly endeavours of all sorts. The right to communicate, therefore, includes right to communicate through any media that is available whether print or electronic or audio-visual such as advertisement, movie, article, speech etc. That is why freedom of speech and expression includes freedom of the press. The freedom of the press in terms includes right to 24 1995 (2) SCC 161 49 Dr.GRR,J WP No.36994 of 2017&Batch circulate and also to determine the volume of such circulation. This freedom includes the freedom to communicate or circulate one's opinion without interference to as large a population in the country as well as abroad as is possible to reach."
46. Keeping in view the sanctity of the said right, which was placed on a highest pedestal by the Hon'ble Apex Court, and the same was also expressed, when the present book was sought to be banned in WP (Civil) No.946 of 2017, wherein it was held that the book written by an author is his/her right of expression and that every Author or Writer has a fundamental right to speak out ideas freely and express his thoughts adequately and curtailment of an individual writer/author's right of freedom of speech and expression should never be lightly viewed and declined the prayer made by the petitioner therein, initiating criminal cases against the petitioner basing on the views expressed by him in the same book, is considered as illegal and violative of his fundamental right under Article 19(1)(a) of the Constitution of India and as such, considered fit to quash the same.
47. In the result, all the writ petitions are allowed quashing the proceedings in Crime No.770 of 2017 on the file of the Malkajgiri Police Station, Rachakonda Commissionerate; CC No.417 of 2017 on 50 Dr.GRR,J WP No.36994 of 2017&Batch the file of the Judicial Magistrate of First Class at Korutla, Jagtial District; CrimeNo.438 of 2017 on the file of the I-Town Police Station, Karimnagar, Karimnagar District and CC No.537 of 2017 on the file of the X Metropolitan Magistrate, Cyberabad. No order as to costs.
Miscellaneous Petitions pending, if any, shall stand closed.
___________________________ Dr. JUSTICE G.RADHA RANI Date:13.12.2024 KTL