Sections 153 A and 505 of IPC that have been used typically apply to religious, caste and communal tensions

The recent arrests in Tamil Nadu of persons who are alleged to have discussed in social media the health of the chief minister indicate a disturbing trend. One particular instance is that of a clerk and an appraiser of a nationalised bank, arrested on the basis of a statement of a party worker who alleged that when she visited the bank she overheard them talking to each other derogatorily about the issue. The question is: Can a mere discussion between two persons be an offence in the context of freedom of speech?

The police seem to think so, as the two bank employees were promptly remanded and sent to judicial custody by a magistrate. More than 50 such cases have been filed in different districts of Tamil Nadu under section 153 A and 505 IPC against persons for “spreading rumours.”

Rumours can have the potential for mischief and have sparked riots but provisions of 153 A and 505 of IPC have always been applied in the context of religious, communal and caste tensions. Section 153 A makes it an offence if words are used to promote enmity between different groups on grounds of religion, place of birth, language, caste etc or acts are done that are prejudicial to the maintenance of harmony. Section 505 makes statements, rumours or reports an offence if there is an intent to cause fear or alarm to the public or to any section of the public whereby a person may be induced to commit an offence against the state or against public tranquillity. The common ingredient in both the offences is promoting the feeling of enmity and hatred between different religious, racial, linguistic or regional groups.

In Bilal Ahmad Kaloo vs State of Andhra Pradesh the Supreme Court held that merely inciting the feeling of one community or group without any reference to any other community or group cannot attract either of the two sections of the IPC.

Since both these provisions are restrictions on freedom of speech, a safeguard is provided before a complaint is filed where the sanction of the central or the state government is required under section 196 of the criminal procedure code.

There is a clear prohibition against taking cognizance of an offence under these sections unless there is a sanction. This is so because such prosecutions rest only with the state and not to private individuals or groups who may feel slighted at anything and everything. In the words of the Supreme Court, “Sanction is not an idle formality or an acrimonious exercise but a solemn and sacrosanct act.” The sanctioning authority has to apply its mind to the facts before it and has to give adequate reasons for the course of action, viz prosecution. But sadly this safeguard is often lost as the police in the country today are entertaining complaints from all and sundry for these offences including sedition without obtaining sanction whether it is for banning a book, movie or any other activity involving free speech and expression.

The Madras high court in the case relating to Perumal Murugan’s ‘One part woman’ has clearly observed, “there is bound to be a presumption in favour of free speech and expression as envisaged under Article 19(1) (a) of the Constitution of India unless a court of law finds it otherwise as falling within the domain of a reasonable restriction under Article 19(2) of the Constitution of India.”

The authorities in Tamil Nadu need to be reminded of the words of the Madras high court in Sony Pictures vs state of Tamil Nadu that related to the ban on the movie ‘Da Vinci Code’. The judge observed, “When the State has a duty to prevent all threats of demonstrations and processions which amount to intimidating the right of freedom of expression, it cannot plead its inability to handle breach of peace if and when it arises.”