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Supreme Court has recently observed that Disapprobation of Governmental inaction cannot be labelled as an attempt to promote hatred between different communities. Court was referring to a Facebook post by Patricia Mukhim with respect to an incident that broke out between a tribal and non-tribal community.

A Division bench of Justice L. Nageswara Rao and Justice S. Ravindra Bhat, while allowing the present criminal appeal for quashing the FIR against Mukhim, observed,

“The fervent plea made by the Appellant for protection of non-tribals living in the State of Meghalaya and for their equality cannot, by any stretch of imagination, be categorized as hate speech. It was a call for justice - for action according to law, which every citizen has a right to expect and articulate.”

The bench further remarked that the alleged post only indicated agony of the Appellant against the apathy shown by the Chief Minister of Meghalaya, the Director General of Police and the Dorbar Shnong of the area in not taking any action against the culprits who attacked the non-tribal youngsters.

“At the most, the Facebook post can be understood to highlight the discrimination against non-tribals in the State of Meghalaya. However, the Appellant made it clear that criminal elements have no community and immediate action has to be taken against persons who had indulged in the brutal attack on non-tribal youngsters playing basketball. The Facebook post read in its entirety pleads for equality of non-tribals in the State of Meghalaya," the bench added

Reliance was placed on Balwant Singh v. State of Punjab (1995) 3 SCC 214, wherein the Court said, “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 153A IPC and the prosecution has to prove the existence of mens rea in order to succeed.”

Reference was also drawn to Pravasi Bhalai Sangathan v. Union of India, (2014) 11 SCC 477, wherein the Court had elaborated upon the Canadian Supreme Court decision in Saskatchewan (Human Rights Commission) v. Whatcott, (2013) 1 SCR 467.

Canadian Supreme Court in the aforementioned case, had set out what it considered to be a workable approach in interpreting ‘hatred’ as is used in legislative provisions prohibiting hate speech.

“The first test was for the Courts to apply the hate speech prohibition objectively and in so doing, ask whether a reasonable person, aware of the context and circumstances, would view the expression as exposing the protected group to hatred.

The second test was to restrict interpretation of the legislative term ‘hatred’ to those extreme manifestations of the emotion described by the words ‘detestation’ and ‘vilification’. This would filter out and protect speech which might be repugnant and offensive, but does not incite the level of abhorrence, delegitimization and rejection that risks causing discrimination or injury.

The third test was for Courts to focus their analysis on the effect of the expression at issue, namely, whether it is likely to expose the targeted person or group to hatred by others. Mere repugnancy of the ideas expressed is insufficient to constitute the crime attracting penalty.”

Court also cited American Statesman and lawyer, Mr. Thomas Jefferson;

“It is of utmost importance to keep all speech free in order for the truth to emerge and have a civil society”

The present appeal was filed against the rejection of an application moved by the Appellant under Section 482 CrPC, seeking quashing of FIR registered under Sections 153A, 500 and 500 (1)(c) IPC.

Headman and Secretary, Dorbar Shnong, Lawsohtun, Shillong filed a complaint with the Superintendent of Police that the statement made by the Appellant on Facebook incited communal tension which might instigate a communal conflict.

High Court of Meghalaya at Shillong had dismissed the Petition of the Appellant stating that “reference to the attack on the non-tribals in the State of Meghalaya by the tribals has propensity to cause a rift between two communities.” It was further observed that the post sought to arouse feelings of enmity and hatred between the two communities, holding that an offence under Section 153A IPC was prima facie made out.

Case Title: Patricia Mukhim v. State of Meghalaya | CRIMINAL APPEAL NO. 141 of 2021