Bombay High Court
Bombay High Court
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Bombay HC laments rise in instances of hate speech, seeks stricter norms against inflammatory posts on social media

The Court made the observation while disposing of a case seeking direction to the Police and the State to block and take action against one, "AIMIM-Abu Faizal" stated to have spread hate speech online.

Lydia Suzanne Thomas

The Bombay High Court on Friday disposed of a petition urging that it direct the police to act against one, "AIMIM-Abu Faizal" who is stated to have uploaded inflammatory content on social media (Imran Khan v. State of Maharashtra).

While doing so, the Bench of Chief Justice Dipankar Datta and Justice Madhav J Jamdar also lamented on the rise in inflammatory social media material.

The Court observed:

"... people may exercise some degree of restraint on their liberty of free speech and expression particularly during these testing times. The right cannot be exercised to sow seeds of hatred and to create disharmony among religious communities. Since inflammatory posts/messages have the potential of disturbing public peace and tranquility, strong action ought to be taken against those responsible to uphold the high values aimed at by the Constitution. In a secular country like India, the citizens of different religions should feel assured that they can live in peace with persons practicing other religions. Regrettably, a trend is clearly discernible that in the name of exercise of a right, the liberty of free speech is being abused with bad faith."

In view of these concerns, the Court also called upon the State to introduce stricter norms, keeping in mind the test of reasonable restrictions provided under the right to free speech and expression, to deal with the rapid rise of inflammatory posts on social media.

The petitioner, Imran Khan, had approached the High Court after the police failed to act on his complaint that the video by Abu Faizal would cause hatred between Hindus and Muslims.

The petitioner, through his Advocate Vivek Shukla, claimed that Faizal was circulating incendiary material that could potentially create tensions between the communities. Despite his repeated attempts, his complaints were not acted upon by the Police or the State Government, he averred.

Earlier, another Division Bench had directed the State to respond with an affidavit and take action if the information was accurate.

When the matter came up before another Bench, however, the Court ordered that the plea be converted to a PIL petition. Accordingly, the petition was filed in Court as a Public Interest Litigation, and counsel for various social media platforms were heard.

Advocate Shukla told the Court that the Supreme Court's Guidelines in Lalita Kumari on filing of FIRs were not complied with in this case. The High Court found that even if an FIR was not filed, the petitioner's remedy did not lie before the High Court specifically.

Referring to Supreme Court cases, the Bench held observed,

"... the law seems to be well settled that a High Court ought to discourage writ petitions or petitions under section 482 of the CrPC where alternative remedies under section 154(3) of the CrPC read with section 36 or section 156(3) or section 200 read with section 190 of the CrPC have not been exhausted."

On the question of whether the High Court could be approached so as to get the police to take action against the perpetrator, the Bombay High Court adopted a ruling of the Supreme Court which had directed the petitioners in another similar case to approach the fora prescribed by the Code of Criminal Procedure.

Therefore, the High Court refrained from issuing directions to the police in the present case as well, stating that,

"... if indeed the petitioner’s complaint of fresh posts having been uploaded with similar contents and the police remaining inactive despite information given disclosing a cognizable ofence, is true, it is open to the petitioner to pursue his remedy provided by the CrPC. No direction of the nature sought for should, therefore, be passed."

While dealing with whether the Court needed to direct intermediaries to 'block' the Faizal's videos or take his accounts off their platforms, the Court found that only a designated nodal officer could issue such a direction. The procedure for this is laid out in the Information Technology Act, 2000.

The Court noted that the petitioner had already preferred a complaint to the Nodal Officer without seeking the leave of the Court, despite the matter being sub judice. Therefore, the High Court did not pass orders on this aspect either, instead leaving it to the nodal officer to take the complaints made to its logical conclusion.

Public Prosecutor Deepak Thakare and Additional Public Prosecutor PP Shinde appeared for the State of Maharashtra in the matter.

Advocates Naresh Thacker, Shailesh Poria and C Keswani appeared for Google. Senior Advocate Darius Khambatta and Advocates Tejas Karia, Udit Mendiratta, Vaibhav Singh, Thejash R and Gourav Mohanty represented Facebook.

ASG Anil Singh alond with Advocates Aditya Thakkar and DP Singh appeared for the Central Government.

Read the Order:

Imran Khan v. State of Maharashtra and Ors. - Final Order dated August 21.pdf
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