While dismissing the writ petition filed by Journalist Amish Devgan; seeking FIR quash against him for his remarks made against Sufi Saint Moinuddin Chisthi; the Two-judge Bench of Justice AM Khanwilkar and Justice Sanjiv Khanna has observed that the term ‘public tranquillity’ under Section 153A(b) of Indian Penal Code 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 interest at large.
In this case, the apex court has interpreted the ingredients of the offence under Section 153A of the Indian Penal Code. The provisions of Section 153A(b) states; an 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 disturb the public tranquillity.
Observing the punishment of imprisonment for upto 3 years; the court noted that; “………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) would mean order publique; a French term that means absence of insurrection, riot, turbulence or crimes of violence & would also include all acts which will endanger the security of the state, but not acts which disturbs only serenity, and are covered by the third & widest circle of law & order.”
Further, the court also added that ‘Public Order’ in clause (2) to Article 19; to include acts of local significance embracing a variety of conduct destroying or menacing public order. However, the bench has explained the test of top of ‘clapham omnibus’ in Paragraph 49 of the Judgement as;
“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 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 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.”
Referring to the Bombay High Court judgment in Gopal Vinayak Godse vs. UOI & the Calcutta High Court judgment in PK Chakravarty vs. the King; the apex court has observed that the view expressed in PK Chakravarty is much broader & a wide picture “which, in our opinion, would be the right way to examine whether an offence under section 153A, clauses (a) & (b) had been committed………….a particular imputation is capable of being conveyed means and implies it is reasonably so capable and should not be strained, forced or subjected to utterly unreasonable interpretation.”
Apart from this, the apex court has briefly explained Section 297 & 505 of the IPC while passing this judgment. Moreover, the court further noted that clauses (a) & (b) to sub-section (1) to section 153A of the IPC use the words ‘promotes’ 7 ‘likely’ respectively. Similarly, Section 295A uses the word ‘attempts’ & sub-section (2) to Section 505 uses the words ‘create or promote’. “Word ‘likely’ as explained above, in our opinion covey the meaning, that the chance of the event occurring should be real and not fanciful or remote;” the bench has emphasized.
