New Delhi: An FIR over defamatory social media posts should be registered if there is a complaint from an aggrieved person rather than an unrelated third party, the Telangana High Court has ruled. It also said police must take prior legal opinion before filing cases in relation to sensitive political speeches or posts, and conduct a preliminary inquiry before registering case in matters related to cognisable offences.
A bench of Justice N. Tukaramji laid down broad guidelines for the police to initiate prosecution on complaints filed against somebody for their social media posts. The guidelines are part of a judgement by which the HC quashed three criminal cases against Bharat Rashtra Samithi (BRS) activist Durgam Shashidhar Goud.
The FIRs against Goud were registered in March for alleged defamatory posts and abusive content he shared on his social media platform X, targeting Telangana Chief Minister A. Revanth Reddy.
All the FIRs were based on complaints made by one police constable and not by someone who was aggrieved by his posts. The constable claimed he found Goud’s posts to be “vulgar” and “abusive.” He said he came across the content while browsing social media on 4 and 11 March.
Subsequently, a case was registered by the Telangana’s Cybersecurity Bureau against Goud under Bharatiya Nyaya Sanhita (BNS) sections related to criminal offences like defamation, and intentional insult with intent to provoke breach of peace
Goud petitioned the high court to quash the FIRs.
In the judgement, the court noted that under the Bharatiya Nagarik Suraksha Sanhita (BNSS) framework, only an aggrieved person can seek the registration of an FIR, which did not happen in the present case. To ensure that law is followed, the court said the police must verify whether the complainant is actually the “aggrieved person”, and not an unrelated third party to the case.
Secondly, it said, in cases concerning cognisable offences, where arrests can happen without a warrant, a preliminary inquiry must be conducted by the police to check whether the ingredients of offences are made out.
Thirdly, it said there is a higher threshold for registering FIRs in cases of social media posts, and ones where there is allegation of promotion of enmity, sedition, or threats to public order.
Goud’s lawyers argued before the court that his posts on X were protected under his fundamental right to free speech and expression. They said Goud was only expressing his political opinion on social media, and did not intend to incite violence or disturb public peace.
Saying that the offence of criminal defamation can only be invoked by a complainant who is “aggrieved” by the defamatory post and not an unrelated third party, Goud also argued his posts could not be dubbed “obscene”, and were “at best” political criticism.
On the other hand, public prosecutors who appeared for the Telangana government, said Goud had not responded to repeated notices requiring him to appear, or even produced his electronic devices with the authorities.
They claimed Goud had shown a similar pattern of conduct, and was involved in multiple, criminal cases in the state. He made the posts with an intention of causing unrest against a democratically elected government, they claimed.
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Free speech vs. public order
Taking a look at the social media posts made by Goud, the court said although the content may, in appropriate circumstances, amount to defamation, hate speech, incitement to violence and other cognisable offences, investigating agencies must, on the face of it, find admissible material, which contains both the mens rea (requisite intent), and the actus reus (actual harmful effect of the act).
“Mere publication of offensive or critical content, without making out a case of an intention to cause the prohibited consequences, is insufficient to proceed with the criminal proceedings,” the court ruled, emphasising the importance of intention in such cases.
“Courts, in this regard, are duty-bound to adopt a balanced approach safeguarding the constitutional guarantee of freedom of speech and expression under Article 19(1)(a) while ensuring that such freedom does not extend to speech that causes tangible harm, such as misinformation, targeted harassment, or incitement,” said the court.
Quashing the cases against Goud, the court said, “The first post, which describes the Congress party as a ‘scourge’ and likens it to a ‘pest’ is harsh and metaphorical but constitutes political criticism.” It said this action won’t attract the provision on promotion of enmity, since it targeted a political party, and not a protected group.
Although the second post, where the Congress party and the CM were both named, could be construed as defamation, the court pointed out that a government cannot sue for defamation, but individual ministers, political parties and associations can. “Even here, statutory defences of truth and fair comment in the public interest remain available.”
What were other guidelines
Among the other guidelines given by the court was a direction to the police to stop the “mechanical or mindless” registration of cases concerning harsh, offensive, or critical political speeches.
“Only when the speech amounts to incitement to violence or poses an imminent threat to public order may criminal law be invoked. Constitutional protections for free political criticism under Article 19(1)(a) of the Constitution must be scrupulously enforced,” the court said.
Taking note of the fact that defamation is classified as a “non-cognisable offence” in Indian criminal law, the court said that in such cases, the police cannot directly register an FIR. Instead, the one who complains of defamation must first be directed to approach the jurisdictional magistrate, on whose order police action may follow, it said.
“Automatic or mechanical arrests are impermissible, and the principle of proportionality in the exercise of criminal process must be observed,” the court ruled in its September 10 order.
Besides this, the court emphasised the need for prior legal scrutiny in sensitive cases dealing with political speeches or posts. This can be done by the police taking a legal opinion from the public prosecutor before registering an FIR.
Finally, the court said that if a complaint is found to be frivolous, vexatious, or politically motivated, the investigation must be closed citing insufficient grounds.
(Edited by Ajeet Tiwari)
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