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Report No. 42

8.21. Validity under Article 19 of the Constitution.-

Since section 153A constitutes a restraint on the freedom of speech and expression, the question may be raised with reference to clauses 1(a) and (2) of Article 19 of the Constitution whether it is a reasonable restriction imposed in the interests of the security of the State or in the interest of public order, decency or morality, or in relation to incitement to an offence. Though the constitutionality of the section has not yet been decided by the Supreme Court, two High Courts1 have held that it imposes a reasonable restriction 'in the interest of public order', and is therefore, a valid law.

After the decision of the Supreme Court in Kedarnath's case,2 interpreting section 124A and upholding its validity, it would appear that the validity of section 153A could also be supported provided one reads into the section the likelihood of disturbance of public tranquillit.-a requirement expressly mentioned in clause (b) of section 153A though not in clause (a). Reference may also be made to the Supreme Court judgment in Ramjilal Modi's case,3 in which the validity of section 295A was upheld on the ground that the section imposed a reasonable restriction in the interest of public order. We may, therefore, assume the constitutional validity of this section.

1. (a) Debi Soren v. State, AIR 1954 Pat 254 (257, 258), paras. 10 to 13 (Das and Rai JJ.).

(b) Khan Gufran Zahidia v. State, 1964 All LJ 545 (551): 1964 All WR (HC) 694.

(c) Wajih Uddin v. State, AIR 1953 All 335 (336, 337) (Jagdish Sahai and Ramabhadran

(d) Sagalsem Indramani Singh v. State of Manipur, AIR 1955 Manipur 9 (15).

2. Kedar Nath, AIR 1952 SC 965: 1962 (Supp) 2 SCR 769.

3. Ramjilal Modi, AIR 1957 SC 620 (623): 1957 SCR 860.

8.22. Need for the original Explanation considered.-

Since Parliament has very recently1 considered the section in detail and revised it, we do not think it necessary to scrutinise the substance of the provision. There is, however, one point which requires careful consideration. Before its amendment2 in 1961, section 153A contained the following Explanation:

"Explanation.- It does not amount to an offence within the meaning of this section to point out, without malicious intention and with an honest view to their removal, matters which are producing or have a tendency to produce, feelings of enmity or hatred between different classes of the citizens of India."

This Explanation was omitted3 by the amending Act of 1961. It was stated4 by the Minister sponsoring the amendment that the intention in omitting the Explanation "was to cast the responsibility on the offender to prove that his intentions were not mala fide or malicious". Before 1961, the majority of the High Courts had taken the view that, under section 153A, it was necessary that the purpose, or part of the purpose, of the accused was to promote feelings of enmity of the nature referred to in the section; and, if it was no part of his purpose, then the mere circumstance that there may not be such a tendency would not suffice. It was observed by the Calcutta High Court5.-

"It is settled law that section 153A, I.P.C. does not mean that any person who publishes words that have a tendency to create class hatred can be convicted under that section. The words 'promotes or attempts to promote feelings of enmity' are to be read as connoting a successful or unsuccessful attempt to promote feelings of enmity. It must be the purpose or part of the purpose of the accused to promote such feelings, and if it is no part of his purpose, the mere circumstance that there may be a tendency is not sufficient."

In several subsequent decisions it was held that intention was a necessary ingredient of the offence under section 153A.6 Some of these cases laid stress on the Explanation as reinforcing the view that intention was essential to constitute the offence.

On the contrary, the Allahabad High Court had taken a different view. While the earlier Allahabad case7 spoke merely of a presumption of intent, later cases8 totally ruled out any question of mens rea. The leading decision in favour of this view is that of Sulaiman, C.J.9 who observed.-

"It is quite clear to my mind that there are many offences in the Indian Penal Code for which the proof of an express intention on the part of the accused is not at all necessary. Indeed, wherever it is necessary that intention should form a necessary part of the offence, the sections expressly say so."

Contrasting the language of section 153A with that of section 499 (where the word 'intended' appears twice), Sulaiman C.J. added:

"It seems to me that it would be interpolating the words 'with intent to' in section 153A if one were to hold that the intention of the writer to promote hatred etc. must be established.

It would, therefore, seem to follow that the Legislature contemplates that the words spoken or written, which do promote hatred etc. would create sufficient mischief so as to fall within the scope of the section, and that it is not necessary for the prosecution further to establish that the writer had the intention to promote such hatred."

The Allahabad decisions related to sections 99A and 99B of the Code of Criminal Procedure, 1898, and the observations made there regarding section 153A could be regarded as obiter. But it is obvious that the view that section 153A does not require mens rea is, at present, firmly established in that High Court.

So far as could be ascertained, there is no later case of the Allahabad High Court to the contrary. In one case decided in 1964,10 the question was considered whether members of a Hindu Mahasabha constituted a 'class' under section 153A. In that case, the High Court held them to be a class, but since the charge spoke of enmity between Hindus and Muslims, the accused was acquitted by the High Court. In the opening part of the judgment, after quoting the unamended section 153A (the case relates to a speech made before the amendment of 1961), the High Court observed, "The class or group can be based not only on grounds of religion, race, language, caste or community, but also on political or economic affiliation.

However, the explanation to section 153A protects honest criticism or any act of the person criticising a political party without a malicious intention. In other words, therefore, even though promotion of feelings of enmity and hatred between different political parties would lie punishable under section 153A, still any honest criticism without any malicious intention would be a good defence, as laid down in the Explanation thereto."

The absence of the Explanation (omitted in 1961) may add strength to the Allahabad view and weaken the majority view because the majority relied, to some extent, on the Explanation.

1. The Criminal and Election Laws Amendment Act (35 of 1969).

2. The Indian Penal Code (Amendment) Act, 1961 (41 of 1961).

3.The Indian Penal Code (Amendment) Act, 1961 (41 of 1961).

4.Lok Sabha Debates, Second Series (21st August, 1961 to 1st September, 1961), Vol. 57, col. 6220.

5.P.K. Chakravarti v. Emp:, AIR 1926 Cal 1133 (Rankin J.).

6.(a) Devi Shdran Sharma v. Emp., AIR 1927 Lah 594 (598.) (Case law reviewed, p. 602);

(b) Emp. v. Banomali Maharana, AIR 1943 Pat 382 (386);

(c) Raj Paul v. Emp., AIR 1927 Lah 590;

(d) King Emperor v. Raj Pal, AIR 1926 Lah 193 (196);

(e) Ishwari Prasad v. King Emperor, AIR 1927 Cal 747 (Play 'Balidan' about the murder of Swami Shradhanand was the subject-matter of the prosecution because, the writer had argued in favour of the Shuddhi movement. Accused was acquitted, there being no intention to excite enmity).

7.Kali Charan v. Emp., AIR 1927 All 649 (652) (SB).

8.(a) M.L.C. Gupta v. Emp., AIR 1936 All 315 (316) (SB).

(b) Harnam Das v. State of Uttar Pradesh, AIR 1957 All 538 (540), para. 3 (SB).

9. M.L.C. Gupta v. Emp., AIR 1936 All 315 (316).

10. K.G. Zahidi v. State, (1964) 62 All Lj 545 (547) (D.S. Ma thur J.) (Case not reported in other series).

8.23. Mens rea under section 153A.-

Three possible views can now be put forth as to the requirement of mens rea under section 153A. First, intention is still the gist of the offence, and has to be proved by the prosecution like any other fact, though it is open to the Court to infer it as is usually done in other cases. (Majority view before 1961).1 Secondly, intention is still the gist of the offence but there is a rebuttable presumption about it. By virtue of section 81 of the Code, read with section 106 of the Evidence Act, however, the accused can rebut the presumption (view expressed in Debates in Parliament in 1961).2 Thirdly, intention is not required and mere tendency to promote etc. is enough. (Allahabad view before 1961).3

1. Para. 8.22, supra.

2. Para. 8.22, supra.

3. Para. 8.22, supra.

8.24. Doubts likely in the absence of Explanation.-

It is difficult to say what view the Courts will take in the absence of the original Explanation. Reliance on section 81 of the Code may not suffice.

If mens rea is not considered necessary, then any writing of a reasoned character, but containing a strong attack on a religion or its founder, written by way of comment with a view to inducing persons to effect social or religious reforms, may fall within the mischief of the section. It was precisely this situation which was sought to be avoided by the original Explanation.

"Intention" and "tendency" are entirely different concepts. While the former has reference to the state of mind of the actor, the latter has reference to the possible effect of the act. The tendency of an act may be, in fact, exactly the reverse of the result which the actor intended, should follow from the measure taken by him. Except for the offence of contempt of court, the effect or tendency produced by an act is not ordinarily considered as sufficient to make it criminal, unless it is accompanied by the necessary knowledge or intention. We do not also think it fair to throw on the accused the burden of proving the absence of mens rea. This is against the general scheme of criminal law, and no strong reasons for departure therefrom exist.

8.25. Amendment proposed.-

Hence we would support the first view, and recommend that the word 'intentionally' should be inserted before the word 'promotes' in section 153A to make it clear that mens rea is essential and has to be proved as in any other case.

8.26. Section 505.-

Mention should be made here of section 505 (placed in Chapter 22) which punishes the making, publishing or circulating of any statement, rumour or report "conducing to public mischief". We have already recommended that the portion of this section which relates to statements made with intent to cause mutiny, dereliction of duty, insubordination etc. among the armed forces should find a place1 in the Chapter relating to offences against the armed forces. The rest of the section really relates to public tranquillity. This section has been recently amended by the addition of two sub-sections relating to statements creating or promoting enmity, hatred or between classes.

This part of the section is very similar to, if not wholly covered by section 153A, and it would be logical to include it in Chapter 8 immediately after this section. The subject-matter of the two sections is quite different from the subject of unlawful assemblies and riots dealt with in the group of sections 147 to 158. It would be more appropriate, therefore, to renumber section 153A as section 158A, and to insert after it the following new section.-

"158B. Statements conducing to offences against public tranquillit.-(1) Whoever makes, publishes or circulates any statement, rumour or repor.-

(a) with intent to create or promote, or which is likely to create or promote, on grounds of religion, race, place of birth, residence, language, caste or community or any other ground whatsoever, feelings of enmity, hatred or between different religious, racial, language or regional groups or castes or communities; or

(b) with intent to incite, or which is likely to incite, any class or community of persons to commit any offence against any other class or community; or

(c) with intent to cause, or which is likely to cause, fear or alarm to the public or to any section of the public, whereby any person may be induced to commit an offence against the public tranquillity, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.

Exception.- A person making, publishing or circulating any such statement, rumour or report, who has reasonable grounds for believing that such statement, rumour or report is true and makes, publishes or circulates it in good faith and without any such intent as aforesaid, does not commit an offence under this section.

(2) 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 of either description for a term which may extend to five years, and shall also be liable to fine."

1. See para. 7.9, above.

8.27. Sections 154, 155 and 15.-punishment enhanced.-

Offences under sections 154, 155 and 156 are seldom brought to court, though, if these sections are strictly enforced in appropriate cases, they may effectively check rioting on account of land disputes, which are widely prevalent in some parts of India. The sentences provided in these sections are lenient. We recommend that a sentence of six months' imprisonment of either description or fine or both should be provided for each of the three offences.

8.28. Section 15.-amended.-

Amongst the acts punishable under section 157, one is that of 'harbouring' a person known to have been engaged to become a member of an unlawful assembly. The expression 'harbour' has been, defined in an earlier section,1 in a wide manner. This definition is too wide for the purpose of section 157. In fact, existing section 52A, which defines 'harbour', excludes section 157 from its scope, and this indicates that the dictionary meaning of 'harbour' is intended for the purpose of section 157.

It appears to us, that the expression 'harbours' in section 157 can be easily avoided. We recommend that for the word 'harbours', the word 'shelters' be substituted.

1. See discussion regarding section 52A, para. 2.81, above.

8.29. Section 158.- No change is needed in section 158.

8.30. Section 159.-

Under section 159, two requirements are necessary in order that fighting may amount to an affray. The first is that the fighting must be in a public place, and the second is that it should be of such a character as to disturb the public peace. In a recent English case.1 it appears to have been held that an affray can be committed in a private place, but we do not think this would be right for Indian conditions. The mention of 'public place' should be retained in section 159. It was suggested that the expression 'public place' may be defined as a place used by the public, whether they have a right of access to it or not; but, in our view, such a definition would not be of much practical utility, and would not solve actual problems which arise in practice as to whether a particular place is or is not a public place.

1. Button v. D.P.P., (1965) 3 All ER 587 (HL).

8.31. Section 16.-amended.-

It appears to us that the punishment for affray under section 160 (imprisonment upto one month or fine upto one hundred rupees) is grossly inadequate. Punishment under this section should be increased to 6 months' imprisonment; and, as regards fine, there need be no limitation on the amount. Section 160 may, therefore, be revised as under.-

"160. Punishment for committing affray.- Whoever commits an affray, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine or with both".

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