The test of a reasonable prudent person must be applied in deciding whether a tweet causes enmity or hatred between two groups or communities. It is also important to look into the surrounding circumstance while determining whether a tweet disturbs or is likely to disturb public tranquillity or whether it promotes disharmony between different castes or communities. A division bench of Justice SS Shinde and Justice MS Karnik while adjudicating the matter in Ms. Sunaina Holey v. State of Maharashtra [CRIMINAL WP-ASDB-LDVC-287 OF 2020] dealt with the legality of a tweet and whether it caused incitement among the public or not.
An FIR had been registered against the petitioner for a tweet on Twitter, a popular social media platform, on the ground that incited violence and created hatred and enmity between Hindus and Muslims. The petitioner in the aforesaid tweet shared a video wherein a member of the crowd (identified as a Muslim) was seen to be blaming the Prime Minister of India for the Covid-19 pandemic outbreak, to which the petitioner took a stand for the Prime Minister and questioned the irresponsibility of the tweet by commenting “Crowd shouting Yeh ALLAH KE TARAF SE NAHI HAI YE MODI KE TARAF SE HAI- What’s going to happen next @ ofceofut @ AUThackeray @priyankac19? PR karona ab. Blame it on @narendramodiji.Hain? Bandra Masjid Location Hai. Ab aur kuch bolu? Single Source Kaaf Hai. @ Dev_Fadnavis Help”.
The counsel appearing on behalf of the Petitioner contended that; when the tweet is considered in its entirety, it would clearly reveal that there was no intention in spreading hate or creating enmity between the Hindu and Muslim community. The tweet merely questioned the contents of the video and commented on the rationality of the tweet. According to the counsel appearing on behalf of the respondent, the tweet is offensive against people of the Muslim faith and the tweet seemed to have deliberately distorted facts by amplifying the weakened voice of a single individual who blamed the PM of India for the pandemic.
The Bombay High Court held that in the above case, the petitioner was unhappy with the viewpoint voiced out in the video and thus reposted the video in order to criticize it. The intention of the accused to create hatred between the Hindu and Muslim community must be judged on the basis of words used by the accused along with surrounding circumstances. Further, it 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 scent danger in every hostile point of view.
The Bench hence quashed the order and sounded the judgment that “The intention to cause disorder or incite people to violence is the sine qua non of the offence under Section 153A of IPC and prosecution has to prove prima facie the existence of mens rea on the part of the accused.”