Bombay HC quashes FIRs, imposes fine for 'unjustified arrest' over video on minister

Mumbai: The law cannot be used as an instrument of oppression to harass people and prevent them from expressing their views, the Bombay High Court said on Monday while quashing two FIRs registered against a man for posting a video of a Maharashtra minister making alleged objectionable remarks against social reformers Mahatma Jyotiba Phule and Babasaheb Ambedkar.

The HC also said the onus was on the police and the State to ensure Indian Penal Code section 153A, pertaining to promoting enmity between groups through acts that are prejudicial to the maintenance of harmony, which was invoked against the man, is not misused by "anyone, much less, political parties".

The HC directed the state government to pay a fine of Rs 25,000 to the man for his "unjustified arrest", adding the amount be recovered from the salary of the Pune policemen responsible for registering the FIRs.

Sandeep Kudale, who claims to be a Congress worker, had posted a video of Maharashtra minister and senior Bharatiya Janata Party leader Chandrakant Patil making alleged objectionable remarks about Phule and Ambedkar.

Following this act, FIRs were registered against Kudale at different police stations in Pune under Indian Penal Code sections 153A(1)(a) (promoting enmity between two groups through words, written or spoken) and 153A(1)(b) (committing any act which is prejudicial to the maintenance of harmony between different religious, racial, language or regional groups or castes or communities).

A division bench of justices Revati Dere and Prithviraj Chavan, in their order quashing the FIRs, observed, "Law cannot be used as a tool or as an instrument of oppression, by registering FIRs, to harass people by preventing/intimidating them, from expressing their views/opinions/dissent, which the Constitution of India, guarantees to them." The right to express one's views is a protected and cherished right in our democracy and cannot be taken away by imposition of Section 153A of the IPC and by arresting a person as was done in the present case, the HC further observed.

"Section 153A cannot be resorted to silence people from expressing their views/opinions/dissent, so long as Article 19(2) is not violated. Cases under Section 153A are on the rise and the onus is on the police/State to ensure the said provision is not misused by anyone, much less, political parties," it added.

The bench noted the Constitution guarantees several fundamental rights to its citizens and one of the rights conferred is the right to freedom of speech and expression under Article 19(1)(a).

"The said right to freedom of speech and expression enables a person to express his or her opinions freely, subject to reasonable restrictions, as spelt out in the very Article. This right, guaranteed to all its citizens, is a valuable right and is the backbone of a healthy and vibrant democracy. In a way, it enshrines the principle of 'liberty of thought and expression' given in the Preamble," the court said.

The HC said that, as revealed from the contents of the FIR, Kudale had only expressed his view pursuant to what the minister had said, adding this act of the petitioner was well within his right to express his opinion as guaranteed by the Constitution.

Merely because the petitioner's comments hurt the complainant's sensibilities is not a ground for the police to register the FIRs, much less arrest him, the HC order stated.

The HC bench said it is pertinent to note the petitioner (Kudale) was arrested and was in custody for two days, despite prima facie, no offence, being disclosed against him.

"The police, before arresting, must first apply their mind, as to whether any offence is made out or not, as an arrest visits serious consequences on the person arrested. The offences alleged have serious connotations/ramification and the police have to be mindful of the same," it said.

The HC order said invocation of the said sections has serious repercussions not only on that person's life, but also his family life and causes "incalculable harm to one's reputation and even career".

"It cannot and must not be lightly invoked," the HC asserted.