The limitations on freedom of speech and expression under Article 19(2) of the Constitution and the societal impact of hate speech.

JUDGMENT :

Ravindra Maithani, J.

Applicant Mr. Jitendra Narayan Tyagi @ Vasim Rizvi is in judicial custody, in Criminal Case No.8 of 2022, under Sections 153A, 298 IPC, Police Station Kotwali, Haridwar, District Haridwar. He has sought his release on bail.

2. Heard learned counsel for the parties and perused on record.

3. The FIR in the instant case has been lodged by Nadim Ali, the informant. According to it, a Dharm Sansad was organized in Haridwar between 17th and 19th December, 2021, in which, it was resolved to wage war against a particular religion; objectionable words were used with regard to the religion, Prophet and religious books. Even thereafter, the chapter did not close. The petitioner, thereafter, released a video message, in which, he again abused a particular religion, Prophet and made utterances so as to wage war against a particular religion.

4. Learned Senior Counsel appearing for the applicant would submit that the offences are punishable maximum for three years of imprisonment and triable by the Magistrate. One of the accused, relating to the Dharm Sansad has already been granted bail by the trial Court with certain conditions. It is argued that the applicant may also be enlarged on bail, subject to the conditions as may be imposed by this Court. Learned Senior Counsel has also raised the following points in his submissions;

(i) After the Dharm Sansad, nothing had happened as was anticipated in the FIR No.849 of 2021, which was lodged on 23.12.2021 with regard to the statements made in the Dharm Sansad.

(ii) The Constitution of India gives freedom of speech and expression. It cannot be restricted.

(iii) The applicant studied a particular religion. He had written a book also, which was launched by him on 5th November, 2021 in Gaziabad, U.P., and on 12th November, 2021 in Haridwar. Thereafter, an FIR No.810 of 2021 was lodged against the applicant with regard to the book. But, it is argued that the book has never been forfeited under Section 95 Cr.P.C. Had it been done, it is argued the applicant would have challenged such order in appeal.

5. In support of the contention, learned Senior Counsel has placed reliance on the principles of law as laid down in the case of Harnam Das vs State of Uttar Pradesh, AIR 1961 SC 1662, and Azizul Haq Kausar Naquvi and Anr. Vs. the State AIR 1980 All 149, 1980 Cri LJ 448. In both the cases, the order forfeiting a book was impugned (Section 95 of the Code of Criminal Procedure, 1973 (for short, “the Code”) and Section 99A of the Code of Criminal Procedure, 1898).

6. On the other hand, learned counsel for the State would submit that the applicant provoked the masses in general to take up arms against a particular religion; the applicant attempted to promote enmity between different religions. The applicant has criminal history of 34 cases. Therefore, it is argued that it is not a case for bail.

7. Learned counsel appearing for the informant would submit that with regard to the launch of book and Dharm Sansad, the applicant was wanted. He was served a notice under Section 41 of the Code. Despite that again on 28th December, 2021, it is argued, the applicant released the video message promoting enmity between different religions, defaming, belittling a particular religion.

8. Needless to say, bail is a rule, jail an exception. There are various factors, which are taken into consideration, while considering the bail application. Essentially, the purpose is to secure the presence of an accused during trial, but related to it is seriousness of offence; position of the offender and the victim; impact after alleged offence on the society; chances of tampering with the evidence etc. Bail balances individual liberty with societal interest. After all, right to life and liberty is one of the illuminated rights enshrined in our constitution.

9. In the case of Rajesh Ranjan Yadav @ Pappu Yadav vs. CBI, (2007) 1 SCC 7, these aspects have been discussed by the Hon’ble Supreme Court in paragraph 16 as