Mumbai: Ruling in favour of a Pune-based Congress worker who staged a protest outside Maharashtra’s higher and technical education minister Chandrakant Patil’s residence, the Bombay high court on Monday observed that the right to express one’s views is a protected and cherished right in India's democracy and cannot be taken away merely by accusing a person of threatening harmony.

The division bench of Justices Revati Mohite Dere and Prithviraj Chavan passed an order in Sandeep Kudale’s petition seeking the quashing of two FIRs registered against him for protesting against Patil. 

In the order, passed on February 27, the HC has observed that Section 153A (promoting enmity between different groups) of the Indian Penal Code (IPC) cannot be resorted to silence people from expressing their views, opinions and dissent so long as Article 19(2) is not violated. Cases under Section 153A, the judges observed, “are on the rise” and “the onus is on the police/State to ensure that the said provision is not misused by anyone, much less, political parties.”

In December last year, BJP leader Patil, while speaking at a programme at a university in Paithan, Aurangabad, had said, “Those who started schools, Ambedkar, Phule… they did not depend on government aid. They started schools by going to people, and begging, by saying, ‘I’m starting a school, please give me money’.” This angered the anti-caste organisations in the state, leading to protests against Patil across the state. One activist had even blackened Patil’s face.

Kudale, as a mark of protest, stood outside Patil’s house and made statements criticising Patil. A video of these statements was also posted on Kudale’s social media accounts. Based on the complaint of a BJP worker, FIRs were registered against Kudale. The complainant claimed that Kudale was trying to provoke the Ambedkarite community and try to trigger enmity between the two communities. 

“By no stretch of the imagination, can it be said, that by the said words, the petitioner, even remotely promoted or attempted to promote, on the grounds of religion, race, place of birth, residence, language, caste or community or on any other ground whatsoever, disharmony or feelings of enmity, hatred or ill-will between different religions, racial, language or regional groups of caste and communities,” the order reads.

Kudale’s lawyer Subodh Desai, in his argument, called the FIRs “politically motivated”, and said, “(They were) lodged with the sole intent of harassing and browbeating the petitioner, who is a member of the Congress Party, from expressing his opinion.” He further submitted that the petitioner has been falsely implicated only because he questioned the statement of a sitting cabinet minister of the state.

The HC has observed that for section 153 (A) of the IPC to be invoked, there have to be two communities involved. “The statement in question on the basis of which the FIR has been registered against the accused must be judged on the basis of what reasonable and strong-minded persons will think of the statement, and not on the basis of the views of hypersensitive persons who smell danger in every hostile point of view,” the court observed while quashing the FIRs against Kudale.

The order further states that an influential person such as a “top government or executive functionary, opposition leader, political or social leader of following or a credible anchor on a TV show” carries more credibility and has to exercise his right to free speech with more restraint, as his/her speech will be taken more seriously than that of a “common person on the street”.” A citizen or even an influential person, however, is under no obligation to avoid a controversial or sensitive topic. "Even expressing an extreme opinion in a given case does not amount to hate speech,” the court observed.

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