In a major relief to social media freedom, the Supreme Court has quashed a criminal case against Editor of Shillong Times Patricia Mukhim, for her Facebook comment. The Meghalaya High Court unfortunately refused to quash this case. In an appeal, the Supreme Court on 25th March 2021,found no hate in that expression.
The Supreme Court rightly stood as guardian of freedom of expression, this time on digital platform of Facebook. Let us see what exactly Patricia Mukhim wrote on July 3, 2020:
“The attackers, allegedly tribal boys with masks on…should be immediately booked. This continued attack on non-tribals in Meghalaya whose ancestors have lived here for decades, some having come here since the British period is reprehensible to say the least.”
“Don’t they have their eyes and ears to the ground? Don’t they know the criminal elements in their jurisdiction? Should they not lead the charge and identify those murderous elements? This is the time to rise above community interests, caste and creed and call out for justice.”
Mukhim further asked why no attackers have been arrested since 1979 and penalised as per law. She criticised that Meghalaya has been a failed state for a long time now. The Editor questioned the “Dorbar (Council) Shnong” for not taking preventive action.
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Unreasonable complaint
Then, Lawsohtun headman Lurshai Shylla filed a complaint that Mukhim’s statement has incited communal tension and might also instigate conflict. They also alleged that because of this comment by Mukhim, media organisations in West Bengal tried to give a “communal colour” to the incident by invoking the 1979 riots and has put Khasis outside the state in “extreme danger”.
Abusive FIR
On this complaint a criminal case was booked by registering FIR. Police invoked several crimes under Sections 153-A (promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc), 500 (punishment for defamation) and 505 (statements conducing to public mischief) of the Indian Penal Code.
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High Courts wrong conclusion
She approached Meghalaya High Court for quashing of the case. High Court said on 10 November 2020 that her “petition cannot be entertained as the investigation agency should be given a free hand to probe into the matter…. in the event, the investigating agency is required to be given a free hand to investigate the matter and to come to its own conclusion in due process of law. Consequently, I find no merit in the instant petition for exercising powers under Section 482 CrPC”.
Supreme Court’s protection
Through Vrinda Grover, editor approached Supreme Court, saying that she is “facing persecution for speaking the truth and seeking enforcement of rule of law against perpetrators of hate crime, in the exercise of her fundamental right as guaranteed under Article 19 (1)(a) of the Constitution of India”.
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Senior advocate Vrinda Grover asked the Supreme Court to read real purport of her writing, which is “an appeal to impartial enforcement of the rule of law; equal treatment before the law of all citizens; condemnation of targeted violence against members of a minority group; an end to impunity for violence and thereby ensure peace and harmony between communities and groups”.
Agony of journalist is not hate
The SC Bench of Justice L Nageshwar Rao and Justice Ravinder Bhatt examined the content of the comment and said:
A close scrutiny of the Facebook post would indicate that the agony of the Appellant was directed against the apathy shown by the Chief Minister of Meghalaya, the Director General of Police and the DorbarShnong of the area in not taking any action against the culprits who attacked the non-tribal youngsters. The Appellant referred to the attacks on non-tribals in 1979. At the most, the Facebook post can be understood to highlight the discrimination against non-tribals in the State of Meghalaya. However, the Appellant made it clear that criminal elements have no community and immediate action has to be taken against persons who had indulged in the brutal attack on non-tribal youngsters playing basketball. The Facebook post read in its entirety pleads for equality of non-tribals in the State of Meghalaya. In our understanding, there was no intention on the part of the Appellant to promote class/community hatred ….
Figment of imagination
The Bench said:
“The complaint made by the DorbarShnong, Lawsohtun, that the statement of the Appellant would incite communal tension and might instigate a communal conflict in the entire State is only a figment of imagination.
It was a call for justice
The Justices stated:
The fervent plea made by the Appellant for protection of non-tribals living in the State of Meghalaya and for their equality cannot, by any stretch of imagination, be categorized as hate speech. It was a call for justice – for action according to law, which every citizen has a right to expect and articulate. Disapprobation of governmental inaction cannot be branded as an attempt to promote hatred between different communities. Free speech of the citizens of this country cannot be stifled by implicating them in criminal cases, unless such speech has the tendency to affect public order.
Deliberate abuse
What the Editor did was nothing but decrying the violence against non-tribals. It was wrongly interpreted as hate speech by politicians and police. This is how the media is threatened and critical comments are scuttled by those in power. As the editor Patricia has a social status, resources and support of media organizations to take the issue to High Court, which most of the individual Facebook writers cannot afford to do.
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Can face book writers approach Supreme Court?
Forcing the netizens with unaffordable compulsion of seeking courts intervention itself a major obstacle on freedom of expression. The Supreme Court has to explain the meaning of a journalist’s writing in Facebook. Because the court has rightly said that what Mukhim wrote “cannot. by any stretch of imagination, be considered ‘hate speech’” and that the charge that she meant to “incite communal tension and might instigate a communal conflict in the entire State is only a figment of imagination.”
A person who ‘likes’ or forwards or comments on this post also are vulnerable to cases imposed by those in power.
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Who pays compensation?
Another major defect in the system is that people like Patricia Mukhim have no remedy of compensation for such harassment of a wrong criminal case against and the expenditure she incurred to seek justice from Supreme Court through a senior lawyer.
All the rights of the common man are now totally dependent on the affordability of victim to hire a senior lawyer and survive the police harassment and politician’s intolerance. Is this the freedom?
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