When HC got free speech wrong

The Punjab & Haryana High Court recently fined musician Vishal Dadlani and politician Tehseen Poonawala Rs 10 lakh each for their twitter posts mocking Jain monk Tarun Sagar, while quashing the FIR filed against them. Interestingly, the court fined them despite no offence being made out.

It noted that this was done to have a deterrent impact, and to serve ‘justice’ to the Jain community. One wonders if an innocent can be punished to warn future offenders. This judgement has far-reaching implications on the freedom of speech and expression and is problematic because of the precedent it has set.

The controversy

Jain monk Tarun Sagar, in his address to the Vidhan Sabha of Haryana on its Golden Jubilee, had made several remarks about women and religion.

Dadlani perceived the participation of a monk in the legislative house as against the constitutional value of secularism while Poonawala found the monk’s statements sexist. They courted controversy with their tweets in 2016, criticising the monk’s address to the Haryana assembly.

Poonawala even posted a ‘Photoshopped’ picture of a half-naked woman along with the monk. In a subsequent post, Dadlani had apologised for his tweet, following interaction with the monk’s followers.

Thereafter, an FIR was registered by a man named Puneet Arora against both Dadlani and Poonawala under Sections 153-A (promoting enmity between different religious groups), 295-A (deliberate and malicious act to outrage religious feelings) and 509 (words or gestures to insult the modesty of a woman) of the Indian Penal Code and Section 66E of the Information Technology Act (transmission of image of a person without her consent).

Court’s rationale

The court deemed it fit to quash the FIR on the following grounds: first, that mens rea required for the offences to be committed was absent; second, none of the followers from the Jain community initiated the prosecution or had come forward as witnesses and the complainant had no locus standi; third, the right to free speech takes within its fold the right to express unpopular views. However, the court made quashing of the FIR conditional on Dadlani and Poonawala paying Rs 10 lakh each as fine.

There are inherent contradictions in the reasoning of the court that depart from well-established legal principles.

The court came to the conclusion that no offence was made out, yet it imposed a fine of Rs 10 lakh on both. This belies legal reasoning that one cannot be punished if no offence has been committed.

Once the court has come to the conclusion that no offence was made out, it follows that speech was protected by law. Further, penalty can be imposed only when a law specifically mandates it and that too upon the violation of that law.

No legal basis

In the present scenario, no such law exists and hence imposition of fine has no legal basis. Such actions are an insidious form of judicial censorship which impairs the core of free speech contained in Article 19(1)(a) of the Constitution.

The court unjustifiably condemned the tweets as mischief played to gain publicity without having much good work to their credit. That was contrasted with the contributions that the monk had made towards poor people. This, however, is neither a requirement for judicial analysis of the alleged offence nor a ground for imposition of fine. Seeking publicity with or without any credit does not attract any sanctions of law.

The court repeatedly contrasts the actions of Dadlani and Poonawala vis-à-vis the monk. It is of no relevance to test the actions of an individual against another as the Constitution does not set this as a norm for circumscribing the limits of free speech.

In fact, the entire observation of the court on this aspect betrays the constitutional freedom to speak no matter what it may be about so long as it does not attract the vices of law.

The court refers to violence and damage of public property on incitement by use of social media. Here the court is trying to set an example where it pre-empts such actions and curbs it. However, it is grossly unjustified to penalise someone for the exercise of legal speech and use the same to set an example. The law exists to protect free speech — even if one takes a stand different or is opposed to popular belief — and not to penalise it for the sake of setting an example.

Judgements like this have a chilling impact on the exercise of free speech. People will have to think twice before saying anything as what is permissible and what is not is no longer clear.

Courts should become guardians of free speech and such actions as the penalty on Dadlani and Poonawala should not be taken unless the violation of a law is clearly established and the gravity of the situation so demands. One only hopes that this judgement is rectified at appellate level.

(The writer is a student at the National Law School of India University, Bengaluru)