Legal provisions regarding Promoting enmity between different groups (Section 153A of IPC)
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 tranquillity or
c) Organizes any exercise, movement, drill or other similar activity intending that the participants in such activity will 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 participants in such activity intending to 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, 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.
Offence committed in place of worship, etc.:-
(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 which may extend to five years and shall also be liable to fine.
Section 153A was originally introduced in the IPC in the year 1898 by the Indian Penal Code (Amendment) Act, 1898 with a view of preventing breaches of public tranquillity and to prevent various classes from coming into conflict by mutual abuse and recrimination.
The present Section 153A was substituted for the old section by Criminal and Election Laws (Amendment) Act, 1969 following the recommendations of the National Integration Council in 1969. The scope of the section was further widened with the introduction of clause (c) to sub-section (1) and addition of sub-section (2) to Section 153A by Criminal Law (Amendment) Act, 1972.
Constitutional Validity of Section 153A:
In Tara Singh v. State [AIR 1951 Punj 27] the Section 153-A was struck down by perceiving that the section, in the light of Art. 19(2) of the Constitution imposed unreasonable restrictions on the fundamental right of speech and expression and declared it unconstitutional.
Subsequently, the Constitution (First Amendment) Act 1951, inserted the words ‘in the interest of… public order’ in Art. 19(2) to widen the scope of restrictions that can be imposed on the fundamental right.
Later, in Sheikh Wajih Waddin v. State of UP [AIR 1963 All 335] and in Khan Gujram Zahidia v. State of UP [(1964) All LJ 545] and in Gopal Vinajak Godse v. Union of India [AIR 1971 Bom. 56] the courts ruled that Section 153A is not ultra vires because the restriction imposed on freedom of speech and expression by Sec. 153A is reasonable within the meaning of Art. 19(2) of the Constitution. Thus, Article 19(2) would save Section 153A as being within the scope of permissible legislative restrictions on the fundamental right guaranteed by Article 19(1)(a).
Essential ingredients of Section 153-A
The essential ingredients of Section 153A can be enumerated as follows:
Whoever commits any of the following:
1) Whoever by (a) words, either spoken or written; or (b) by signs; or (c) by visible representations, or (d) otherwise;
2) Promotes or attempts to promote disharmony or feeling of enmity, hatred or ill-will;
3) Between different religious, racial, language or regional groups or castes or communities;
4) On grounds of religion, race, place of birth, residence, language, caste or community or any other ground; or
5) The act may be prejudicial to the maintenance of harmony between different groups as outlined above, and which disturbs or is likely to disturb public tranquility; or
6) Organises any exercise, movement, drill or other similar activities in order to train for use of force or violence against any of the groups outlined in the Section.
Section 153A of the Code provides for enhanced punishment for offence committed in a place of worship and making offences under this section cognizable. Under this section promoting enmity between different groups on grounds such as, place of birth, or residence are included and it also makes promotion of disharmony or feeling of ill-will an offence punishable under it.
The provision in clause (b) of sub-section (1) to Section 153A includes acts prejudicial to the maintenance of harmony between different regional groups and sub-section (2) provides for enhanced punishment for any offence specified in sub-section (1) when it is committed in a place of worship, etc.
Section 153-A makes it an offence not only to promote or attempt to promote hatred or enmity between religious, racial or linguistic groups, castes or communities, but also to create any disharmony among these groups.
No prosecution can be instituted under Section 153-A without the previous order or sanction of Government. The offence is cognizable, and warrant may be issued in the first instance. It is both non-bailable and non-compoundable, and is triable by the First Class Magistrate.
In Babu Rao Patel v. State (Delhi Administration) [AIR 1980 SC 763], the court set out the essential requirements for proving the offence under Section 153A as under.
i) It is not necessary to prove that as a result of the objectionable matter, enmity or hatred was in fact caused between the different classes;
ii) It is not necessary to prove or establish intention to promote enmity and so on. It is sufficient, if it is shown that the language of the writing is of a nature calculated to promote feelings of enmity or hatred, for a person must be presumed to intend the natural consequences of his act;
iii) The matter for falling within the scope of the section, must be read as a whole. One cannot rely on stray or isolated passages for proving the charge.
iv) For judging what are the natural or probable consequences of the writing, it is permissible to take into consideration the class of readers for whom the book is primarily meant;
v) If the writing is calculated to promote feelings of enmity or hatred, it is no defence that the writing contains a truthful account of past events or is otherwise supported by good authority. If a writer is disloyal to history, it might be easier to prove that history was distorted in order to achieve a particular end e.g., to promote feeling of enmity or hatred between different classes or communities.
Section 153A cannot be used even if an article caused or tends to cause hatred or enmity between different political classes like the capitalists and the labour class or between persons believing in different forms of Government, e.g., a democratic or totalitarian rule.
In Shiv Kumar Mishra v. State of UP [1978 Cr.LJ 701] the accused was prosecuted under Section 153-A after publishing an article asking people to boycott the elections and extolling Naxalite activities and, thereby, creating disharmony between the capitalists and the labour class as also between those who believed in democratic form of government and those who believe in totalitarian rule.
The High Court observed that what views the applicant has expressed in the article, they are purely political in nature. One can, however, feel tempted to say that this article has given a call to the poor masses to rebel against the capitalist class, but such a call to rebel is not punishable under Section 153-A, IPC because in the impugned article the applicant had not said anything to promote feeling of the enmity or hatred between different religious, racial or language groups or castes or communities on grounds of religion, race, language, caste or community.
In Gopal v. State [(1969) 72 Bom. LR 871 (SB)] it has been held that under this section it is not necessary to prove that as a result of the objectionable matter, enmity or hatred was in fact caused between the different classes. Intention to promote enmity or hatred, apart from the writing itself, is not a necessary ingredient of the offence.
It is enough to show that the language of the writing is of a nature calculated to promote feelings of enmity or hatred, for a person must be presumed to intend the natural consequences of his act.
If writing is calculated to promote feelings of enmity or hatred, it is no defence to a charge under the Section 153A that the writing contains a truthful account of past events or is otherwise supported by a good authority. Adherence to the strict path of history is not by itself a complete defence to a charge under Section 153-A of the Code.
In Chandanmal Chopra v. State of West Bengal [1978 Cr.LJ 182 (Cal.)] it has been observed that Section 153A affords protection to the basic religious books of all the religions against scurrilous attacks.
Immediately after the demolition of Babri Masjid and violent riots editorials appeared in newspapers like Marathi newspaper ‘Samna’ which were in high flown and caustic language. Those writings were not directed against the Muslim Community as a whole but only against anti-national elements amongst them and also against the attitude of police, army and Government. The articles were held to be not coming within the mischief of Section 153-A and Section 153-B of the Code.
In Bilal Ahmad Kaloo v. State of Andhra Pradesh [1997 Cr.LJ. 4091 (SC)] it has been observed that the common feature in Section 153-A of the Code and Section 505(2) of the Code is promotion of feeling of enmity, hatred or ill-will between different religious or racial or language or regional groups or castes and communities.
Therefore it is necessary that at least two such groups or communities should be involved. Merely inciting the feeling of one community or group without any reference to any other community or group cannot attract either of the two sections.
In Hernam Das v. State [(1957) 1 All 528] it was held that it would be no offence if the author adheres to the history part of his narrative, however unpalatable it may be to the members of the other community, but if he uses language which shows malice and is bound to annoy the members of the other community so as to degrade them in the eyes of the other classes, he is promoting feeling of enmity and hatred. He would be liable both under this section and Section 295-A of the Code.