An Analysis of Section 153A of the Indian Penal Code: Promoting Enmity and Disturbing Harmony

An Analysis of Section 153A of the Indian Penal Code: Promoting Enmity and Disturbing Harmony

Introduction

Section 153A of the Indian Penal Code, 1860 (IPC) is a critical provision aimed at penalizing the promotion of enmity between different groups on grounds of religion, race, place of birth, residence, language, caste or community or any other ground whatsoever, and acts prejudicial to the maintenance of harmony. In a diverse nation like India, with its multitude of religious, linguistic, and cultural groups, this section plays a significant role in preserving public order and social cohesion. However, its application often intersects with the fundamental right to freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution of India, leading to complex legal debates and judicial scrutiny. This article seeks to provide a comprehensive analysis of Section 153A IPC, examining its legislative framework, essential ingredients, judicial interpretations through landmark case law, its relationship with free speech, and the challenges associated with its enforcement.

Legislative Framework and Evolution of Section 153A IPC

Section 153A of the IPC, as it currently stands, reads as follows (reproduced in Amish Devgan v. Union Of India[5]):

153A. Promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony.—

(1) Whoever—

(a) by words, either spoken or written, or by signs or by visible representations or otherwise, promotes or attempts to promote, on grounds of religion, race, place of birth, residence, language, caste or community or any other ground whatsoever, disharmony or feelings of enmity, hatred or ill-will between different religious, racial, language or regional groups or castes or communities, or

(b) commits any act which is prejudicial to the maintenance of harmony between different religious, racial, language or regional groups or castes or communities, and which disturbs or is likely to disturb the public tranquility, or

(c) organizes any exercise, movement, drill or other similar activity intending that the participants in such activity shall use or be trained to use criminal force or violence or knowing it to be likely that the participants in such activity will use or be trained to use criminal force or violence or参加者in such activity will use or be trained to use criminal force or violence against any religious, racial, language or regional group or caste or community and such activity for any reason whatsoever causes or is likely to cause fear or alarm or a feeling of insecurity amongst members of such religious, racial, language or regional group or caste or community,

shall be punished with imprisonment which may extend to three years, or with fine, or with both.

(2) Offence committed in place of worship, etc.—Whoever commits an offence specified in sub-section (1) in any place of worship or in any assembly engaged in the performance of religious worship or religious ceremonies, shall be punished with imprisonment which may extend to five years and shall also be liable to fine.

The Supreme Court in Amish Devgan v. Union Of India[5] noted the legislative history of this section, stating it was introduced by the Indian Penal Code (Amendment) Act, 1898. The original section referred to promoting feelings of enmity or hatred between different classes of citizens. It was subsequently amended, with clauses (a) and (b) being shaped by the Criminal Law (Amendment) Act, 1969, and clause (c) inserted by the Criminal Law (Amendment) Act, 1972.[5] The Orissa High Court in Sudhir Kumar Panda v. State Of Orissa[11] observed that the section was enacted to prevent various classes from coming into conflict and to prevent breaches of public tranquility resulting from exciting feelings of enmity.

Essential Ingredients of Section 153A IPC

For an act to constitute an offence under Section 153A IPC, certain ingredients must be satisfied, as elucidated by various judicial pronouncements.

Mens Rea (Intention)

A crucial element for an offence under Section 153A IPC is the presence of mens rea, or a guilty mind. The Supreme Court in Manzar Sayeed Khan v. State Of Maharashtra And Another[7] held that "the gist of the offence is the intention to promote feelings of enmity or hatred between different classes of people. The intention to cause disorder or incite the people to violence is the sine qua non of the offence under Section 153-A IPC and the prosecution has to prove prima facie the existence of mens rea on the part of the accused." This principle was reiterated in JAVED AHMAD HAJAM v. THE STATE OF MAHARASHTRA.[8] The intention has to be judged primarily by the language used and the circumstances in which the words were written or spoken or the act was committed.[7] The Bombay High Court in Arnab Ranjan Goswami v. State Of Maharashtra And Others[20], referencing Manzar Sayeed Khan, also emphasized that intention to cause disorder or incite people to violence is the sine qua non.

The Actus Reus: Words, Signs, Representations, or Acts

The prohibited act under Section 153A(1)(a) involves promoting or attempting to promote disharmony or feelings of enmity, hatred, or ill-will through "words, either spoken or written, or by signs or by visible representations or otherwise." Section 153A(1)(b) covers any act prejudicial to the maintenance of harmony that disturbs or is likely to disturb public tranquility. Section 153A(1)(c) deals with organizing activities with the intent of using criminal force or violence against specific groups.

Between Different Groups

The promotion of enmity or hatred must be between different "religious, racial, language or regional groups or castes or communities." The Supreme Court in Bilal Ahmed Kaloo v. State Of A.P.[3] clarified that for Section 153A to apply, there must be an intentional act promoting enmity between at least two distinct groups. This was also noted in the analysis of Manzar Sayeed Khan.[7] More recently, in SHIV PRASAD SEMWAL v. THE STATE OF UTTARAKHAND,[9] the Supreme Court quashed proceedings under Section 153A IPC, observing that the offending news article made no reference to any group or groups of people but focused on an individual, thereby not fulfilling this essential ingredient.

Context and Interpretation

The courts have consistently held that the matter complained of must be read as a whole. In Manzar Sayeed Khan,[7] the Supreme Court cautioned against relying on "strongly worded and isolated passages for proving the charge nor indeed can one take a sentence here and a sentence there and connect them by a meticulous process of inferential reasoning." The effect of the words should be judged from the standards of a reasonable, strong-minded, firm, and courageous man, and not those of a weak and vacillating mind, nor of those who scent danger in every hostile point of view.[7]

Judicial Interpretation and Application: Key Case Law Analysis

Early Interpretations and Foundational Principles

While Ramji Lal Modi v. State Of U.P.[4] primarily dealt with the constitutionality of Section 295A IPC (deliberate and malicious acts intended to outrage religious feelings), its reasoning regarding reasonable restrictions on free speech in the interest of "public order" under Article 19(2) of the Constitution provides a foundational context for understanding laws that regulate speech to prevent societal discord. The Court upheld Section 295A, noting its specific requirement of deliberate and malicious intent, which narrows its scope.

The Primacy of Intent (Mens Rea) and Impact

The judiciary has consistently emphasized the necessity of proving malicious intent. In Babu Rao Patel v. State (Delhi Administration),[2] the Supreme Court upheld a conviction under Section 153A, finding that articles in a magazine were an "undisguised attempt to promote feelings of enmity, hatred, and ill-will between the Hindu and Muslim communities," thereby inferring the requisite intent and impact.

Conversely, in Balwant Singh And Another v. State Of Punjab,[6] the Supreme Court quashed convictions under Sections 124A and 153A IPC for raising slogans like "Khalistan Zindabad" on the day of Indira Gandhi's assassination. The Court held that the "casual raising of the slogans, once or twice by two individuals alone cannot be said to be aimed at exciting or attempting to excite hatred or disaffection" and noted the absence of any public disturbance. This case is pivotal in distinguishing between mere sloganeering or unpopular expression and speech that genuinely incites hatred or violence. The Punjab & Haryana High Court in Manwinder Singh Petitioner(S) v. State Of Punjab And Others (S)[19] relied on Balwant Singh to grant pre-arrest bail, questioning if printing certain slogans on T-shirts constituted an offence under S.153A IPC.

The case of Manzar Sayeed Khan v. State Of Maharashtra And Another[7] further solidified the importance of intent and context. The Supreme Court quashed an FIR against the author and publisher of the book "Shivaji: Hindu King in Islamic India," emphasizing that scholarly work, even if it contains controversial passages, does not attract Section 153A unless there is a deliberate and malicious intent to promote enmity. The Court noted that the publisher had taken steps to withdraw the book upon receiving objections, which indicated a lack of malicious intent.

Hate Speech Jurisprudence and Section 153A

The Supreme Court in Pravasi Bhalai Sangathan v. Union Of India And Others[1], while addressing the menace of hate speech, affirmed that the existing legislative framework, including Section 153A IPC, was adequate but suffered from ineffective enforcement. The Court emphasized judicial restraint, stating it was not the judiciary's role to legislate new definitions or regulations for hate speech but to urge better enforcement of existing laws.

In Amish Devgan v. Union Of India,[5] the Supreme Court delved deep into the nuances of hate speech vis-à-vis Section 153A. It reiterated that for an act to constitute hate speech under this section, there must be a deliberate and malicious intent to promote enmity, and such speech should have a proximate and substantial likelihood of causing harm. The Court distinguished between "advocacy" and "incitement," stating that only the latter, which has the tendency to create public disorder or violence, is punishable. The Madhya Pradesh High Court in Neha Singh Rathore v. The State Of Madhya Pradesh[10] referred to Amish Devgan while considering a case involving a social media comment alleged to promote disharmony.

Application in Specific Contexts

Section 153A has been invoked in various contexts:

  • Publications and Media: Cases like Babu Rao Patel[2] (magazine), Manzar Sayeed Khan[7] (book), and Amish Devgan[5] (TV debate) illustrate its application to published or broadcast content. In SHIV PRASAD SEMWAL,[9] a news article was found not to attract S.153A as it targeted an individual, not groups.
  • Speeches and Slogans: Balwant Singh[6] (slogans) and Swaraj Alias Raj Shrikant Thackrey Petitioner v. State And Anr. S[15] (speech) are examples.
  • Social Media: The increasing use of social media has led to S.153A being invoked for online posts, as seen in MR. ABDUL SALEEM M K v. STATE OF KARNATAKA[13] (Facebook post) and Neha Singh Rathore.[10]

Procedural Aspects: Sanction for Prosecution

A significant procedural safeguard is provided by Section 196(1)(a) of the Code of Criminal Procedure, 1973 (CrPC), which mandates that no court shall take cognizance of an offence punishable under Section 153A IPC except with the previous sanction of the Central Government or of the State Government. This requirement was highlighted in Swaraj Alias Raj Shrikant Thackrey[15] and Joseph Augustine v. State Of Kerala.[16] In the latter case, the Kerala High Court quashed proceedings under Section 153A IPC because cognizance was taken by the Magistrate without the requisite prior sanction, rendering it bad in law.

Section 153A and Freedom of Speech and Expression (Article 19(1)(a))

The application of Section 153A IPC must be carefully balanced with the fundamental right to freedom of speech and expression guaranteed by Article 19(1)(a) of the Constitution. This right is not absolute and is subject to reasonable restrictions under Article 19(2) in the interests of, inter alia, public order, decency or morality, or incitement to an offence. The Karnataka High Court in SRI B Y VIJAYENDRA v. THE STATE OF KARNATAKA[12] acknowledged this balance, quoting Thomas Jefferson on the importance of free speech while noting the permissible restrictions.

The judiciary, through its interpretations, has sought to ensure that Section 153A does not become a tool to suppress legitimate criticism, dissent, or unpopular opinions. By insisting on a high threshold of malicious intent and a clear tendency to disrupt public order or promote hatred, courts have attempted to safeguard free expression. Cases like Balwant Singh[6] and Manzar Sayeed Khan[7] are testaments to this approach, ensuring that only speech that genuinely threatens communal harmony and public order falls within the mischief of Section 153A.

Challenges and Criticisms

Despite judicial efforts to interpret Section 153A narrowly, concerns about its potential misuse persist. Critics argue that the provision can have a chilling effect on free speech, as individuals might self-censor out of fear of prosecution. The vague nature of terms like "promoting enmity" or "ill-will" can, at times, lead to subjective application. The Supreme Court in Pravasi Bhalai Sangathan[1] acknowledged the difficulties in defining "hate speech" and the primary issue of ineffective enforcement rather than lack of laws. The requirement of government sanction for prosecution under Section 196 CrPC acts as a check, but the decision to grant sanction itself can be politically influenced.

Furthermore, the proliferation of information, especially through social media, poses new challenges for the application and enforcement of Section 153A, as harmful content can spread rapidly and anonymously, making it difficult to establish intent and identify perpetrators.

Conclusion

Section 153A of the Indian Penal Code serves as a vital legal instrument for maintaining social harmony and public order in India's pluralistic society. Judicial interpretations over the decades have consistently underscored that the sine qua non for an offence under this section is the malicious intention (mens rea) to promote enmity, hatred, or ill-will between different specified groups, coupled with an act (actus reus) that has the tendency to do so or to disturb public tranquility. The courts have emphasized that the material must be read as a whole, in its proper context, and judged from the perspective of a reasonable individual.

The delicate balance between safeguarding freedom of speech and expression and preventing the incitement of hatred and violence remains a central theme in the jurisprudence surrounding Section 153A. While the provision is essential to combat speech that genuinely threatens the fabric of society, its application requires careful consideration to prevent its misuse against legitimate expression or dissent. The procedural safeguard of prior governmental sanction for prosecution offers a layer of scrutiny, though its efficacy can be debated. Ultimately, the judicious application of Section 153A, guided by established legal principles and a commitment to constitutional values, is crucial for fostering an environment of tolerance and mutual respect among India's diverse communities.

References

  1. Pravasi Bhalai Sangathan v. Union Of India And Others (2014 SCC 11 477, Supreme Court Of India, 2014)
  2. Babu Rao Patel v. State (Delhi Administration) . (1980 SCC 2 402, Supreme Court Of India, 1980)
  3. Bilal Ahmed Kaloo v. State Of A.P . (1997 SCC 7 431, Supreme Court Of India, 1997)
  4. Ramji Lal Modi v. State Of U.P . (1957 AIR SC 620, Supreme Court Of India, 1957)
  5. Amish Devgan v. Union Of India (2020 INSC 682, Supreme Court Of India, 2020)
  6. Balwant Singh And Another v. State Of Punjab . (1995 SCC CRI 432, Supreme Court Of India, 1995)
  7. Manzar Sayeed Khan v. State Of Maharashtra And Another (2007 SCC 5 1, Supreme Court Of India, 2007)
  8. JAVED AHMAD HAJAM v. THE STATE OF MAHARASHTRA (Supreme Court Of India, 2024)
  9. SHIV PRASAD SEMWAL v. THE STATE OF UTTARAKHAND (Supreme Court Of India, 2024)
  10. Neha Singh Rathore v. The State Of Madhya Pradesh (Madhya Pradesh High Court, 2024)
  11. Sudhir Kumar Panda v. State Of Orissa (Orissa High Court, 2013)
  12. SRI B Y VIJAYENDRA v. THE STATE OF KARNATAKA (Karnataka High Court, 2024)
  13. MR. ABDUL SALEEM M K v. STATE OF KARNATAKA (Karnataka High Court, 2022)
  14. Joy Cherian v. Sub Inspector Of Police (Kerala High Court, 2015)
  15. Swaraj Alias Raj Shrikant Thackrey Petitioner v. State And Anr. S (2015 SCC ONLINE DEL 11986, Delhi High Court, 2015)
  16. Joseph Augustine v. State Of Kerala (2019 SCC ONLINE KER 3955, Kerala High Court, 2019)
  17. Yahiya Thangal v. State Of Kerala (2018 SCC ONLINE KER 18091, Kerala High Court, 2018)
  18. Abdul Khader Anees v. Dinesha K. (2015 SCC ONLINE KER 32921, Kerala High Court, 2015)
  19. Manwinder Singh Petitioner(S) v. State Of Punjab And Others (S) (2012 SCC ONLINE P&H 2698, Punjab & Haryana High Court, 2012)
  20. Arnab Ranjan Goswami v. State Of Maharashtra And Others (Bombay High Court, 2020)