"Who" And "Where" Tests Matter To Determine Hate Speech: Madras HC

Madras HC made some strong observations while dealing with a plea filed by a Catholic priest accused of hate speech.

The Madras High Court on Friday observed that the identity of a person making a speech was important to determine whether it constituted hate speech. Catholic priests or evangelists cannot get the same benefit of doubt or protection as compared to comedians, the Madurai bench of the high court said.

"When stand-up comedians Munawar Faruqui or Alexander Babu perform on stage, they are exercising their fundamental right to poke fun at others. Again, their religious identity is irrelevant. It is here, the 'Who?' and 'Where?' tests matter," Justice GR Swaminathan said. "Section 295A of IPC (outrage religious feelings) cannot be invoked in such cases because the element of malice is wholly absent," the judge added.

The high court's observation came on a plea filed by Fr P George Ponnaiah who sought to quash an FIR filed against him for allegedly making an inflammatory speech against the Hindu community on July 18, 2021. Ponnaiah, an ordained Catholic diocesan, had organized a meeting at his church in Arumanai, a village in western Kanyakumari, Tamil Nadu to mourn the death of Jesuit priest Fr Stan Swamy and to oppose the continued closure of churches in the district owing to pandemic-induced lockdown.

Even as the charges for outraging religious feelings and section 153A of the IPC (promoting enmity between different religious groups) were upheld, Justice Swaminathan quashed charges of criminal intimidation, unlawful assembly, and provisions under the Epidemic Disease Act, 1897.

Ponnaiah targeted the Hindu community, demeaned it, and not only mocked those who believed the Hindu religion but also the prime minister, home minister, and other BJP ministers, the judge concluded.

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Religious criticism by an artist on a different footing than an evangelist

Justice Swaminathan said that criticism or harsh statements pertaining to religion or religious beliefs from rationalists, reformists, academics, or artists would stand on a different footing as compared to evangelists. The former are protected by their fundamental right to free speech and expression.

"We need Charles Darwin, Christopher Hitchens, Richard Dawkins, Narendra Dabholkar, MM Kalburgi, and many such others in public life and discourse. Dr. Abraham T Kovoor, who wrote the book 'Begone Godmen! Encounters with Spiritual Frauds' cannot be said to have outraged the religious beliefs of Hindus. He was speaking as a rationalist. The fact that he belonged to Christianity is utterly irrelevant," the judge pointed out.

Referring to comedians like Munawar Faruqui or Alexander Babu, the judge said when they perform on stage, they are exercising their fundamental right to poke fun at others. "Again, their religious identity is irrelevant," the order read.

"The persons concerned voice their opinions or give vent to their expressions in their capacity as satirists," the judge added.

On the other hand, an evangelist like Ponnaiah cannot claim a similar privilege. He cannot insult or outrage others' religion or their religious beliefs and still claim immunity, the high court said. "This is because he views the other religionists as a constituency to be poached. He cannot be called a disinterested or neutral commentator," the order further said.

"The State cannot remain a mute spectator in such situations. To uphold the sanctity of the Constitution and maintain public order, the strong arm of the law will have to come down heavily on those who seek to disrupt communal peace and amity," the judge concluded.

Justice Swaminathan observed that a reading of Ponnaiah's speech as a whole does not leave anyone in doubt. "His target is the Hindu community. He is putting them on one side and the Christians and Muslims on the other. He is clearly pitting one group against the other. The distinction is made solely on the ground of religion," the judge said.

"They (statements) reek of malice and supremacism. The question is whether the State can ignore such incendiary statements as that of a lunatic fringe. The answer has to be in the negative. The petitioner is a charismatic Catholic priest. He commands a large following," the judge added.

The judge added that, "Bharat Mata evokes a deeply emotional veneration in a very large number of Hindus…She is to many Hindus a Goddess in her own right. By referring to Bharat Mata and Bhuma Devi in the most offensive terms, Ponnaiah prima facie committed the offence of outraging religious beliefs."

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Status quo in matters of religious demography must be maintained

In his 31-page order, Justice Swaminathan made several strong observations on the alleged erosion of the demographic profile of Kanyakumari.

Justice Swaminathan said that the founding fathers adopted secularism because India was partitioned on religious grounds. Status quo in the matter of religious demography has to be maintained for the survival of one's fundamental right to conscience and freedom to profess and propagate one's religion, he said.

"If there is a serious subversion of the status quo, calamitous consequences may follow. State is there to maintain and uphold the rule of law. But if the tipping point is reached, things may become irreversible," the order read.

The demographic profile of Kanyakumari in terms of religion has seen an inversion, the judge said. Justice Swaminathan pointed out that the 2011 census which gives the impression that the Hindus are a majority did not "represent the ground reality".

"Hindus became a minority in the district since 1980... One can take judicial notice of the fact a large number of Scheduled Caste Hindus, though having converted to Christianity and professing the said religion, call themselves Hindus on record for the purpose of availing reservation," the judge said.

"Such persons are called as crypto-Christians," he added.

The judge said that one cannot object to a person converting to another religion, however the same cannot be a "group agenda".

"Our Constitution speaks of composite culture. This character has to be maintained. The clock of history can never be put back. But the status quo that obtains in the year 2022 as regards religious demographic profile may have to be maintained," the judge said.

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Updated On: 2022-01-08T14:17:44+05:30
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