Civil suit can be filed by affected party only not as representative of a community
IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 23rd December, 2021
+ CS(OS) 702/2021 & I.A. 17206/2021.
QAMAR HASNAIN ..... Plaintiff
Through: Dr. Farrukh Khan, Mr. Ateendra
Singh and Mr. Baasir Aziz, Advs.
versus
SYED WASEEM RIZVI & ORS. ..... Defendant
Through: Mr. Sajan Poovayya, Senior Advocate
with Mr. Saransh Jain, Mr. Shloka N.,
Mr. Shaurya R. Rai, Mr. Raksha
Aggarwal, Mr. P.S. Kharola, Mr.
Sourabh Tandon and Mr. Sharan
Balakrishna, Advocates for Defendant
No. 5.
CORAM:
HON'BLE MR. JUSTICE SANJEEV NARULA
JUDGMENT
[VIA HYBRID MODE]
SANJEEV NARULA, J. (Oral):
1. Aggrieved with an online self-publication titled Muhammad,
purportedly authored by Defendant No.1, Plaintiff has approached this Court
seeking orders restraining Defendant No. 1 from making derogatory,
demeaning and incendiary statements against the religion of Islam, the Holy
Quran and Prophet Mohammed and other revered personages. The suit
contains following prayers:
a) Pass a decree for permanent and mandatory injunction against the Defendant
CS(OS) 702/2021 Page 2 of 9
No. 1, thereby restraining the Defendant No. 1 from making statements and / or
publishing remarks that are lascivious, prurient derogatory and hurtful, against
the Prophet Muhammad (PBUH), the religion of Islam, its followers, its tenets
and/or against the Holy Qur'an;
b) Pass a decree for permanent and mandatory injunction against the Defendant No.
1, thereby restraining the Defendant No. 1 from selling, letting to hire, distributing,
publicly exhibiting, or in any manner putting into circulation for the purpose of
sale, hire, distribution, public exhibition, circulation and/or promotion, copies of
the book titled Muhammad in any way and through any medium, including but not
limited to the form of a paperback, hardcover, or any other print media as well as
in the form of digital media in any way;
c) Pass a decree against the Defendant No. 1 directing the Defendant No. 1 to recall
all copies of the abovementioned book and to destroy all copies of the said book,
sold or unsold;
d) Pass a decree against the Defendant No. 1 and in favour of the Plaintiff, awarding
damages to the Plaintiff amounting to a sum of Rs.2,05,00,000/- to the Plaintiff
payable by the Defendant No. 1, or any amount deemed just and proper in the facts
and circumstances of the present case, with a view to discourage the Defendant
No. 1 from committing similar offences in the future;
e) Pass a decree of permanent and mandatory injunction and declaration against
the Defendant nos. 2, 3, 4 & 5, directing them to remove all objectionable posts
and comments from their respective social media platforms and to remove all such
objectionable content from results on their respective search engines, issued by or
attributed to the Defendant No. 1 and to take steps to ensure the curbing of the
spread of hateful and inflammatory content on and through their respective
platforms;
f) Pass a decree awarding costs of the suit to the Plaintiff;
g) Pass any other/further order(s) that this Hon'ble Court may deem fit and proper
under the facts and circumstances of the present case.
2. Plaintiff states that he is a responsible and concerned citizen of India, a
religious scholar, and a concerned follower of Islam. He avers that he
represents the interests and concerns of the Shia community at large and is on
a personal mission to create inter-religious dialogue and promote communal
harmony.
3. Defendant No. 1 is purportedly the author of the impugned book.
Defendant No. 2 is Facebook India Online Services Private Limited,
Defendant No. 3 is WhatsApp Application Services Private Limited,
Defendant No. 4 is Google India Private Limited and Defendant No. 5 is
CS(OS) 702/2021 Page 3 of 9
Twitter Communications India Private Limited. The relief qua Defendants
No. 2 to 5, as sought in prayer (e), are only consequential reliefs founded on
prayer (a).
4. Predominantly, paragraphs 2-7 and 10-11 of the plaint are only
regarding the character and antecedents of Defendant No. 1, which, according
to the Plaintiff, are facetious. Plaintiff is primarily aggrieved by the contents
of the impugned book, which according to him, are damaging to communal
peace and harmony, and uses derogatory and denigrating language against
Prophet Muhammad (PBUH). 1
It is also contended by the Plaintiff that
contents of the book are offensive, hateful and distressing to even a casual
reader, let alone a follower of Islam or an admirer of Prophet Muhammad
(PBUH). Plaintiff avers that the Defendant No. 1 is not protected under the
ambit of the fundamental right to Freedom of Speech and Expression as
guaranteed under Article 19(1)(a) of the Constitution of India, 1950. The
averments in the plaint, which sum up the cause of action, are extracted
hereinbelow:
8. That most recently the Defendant No. 1 committed acts and uttered
statements that are clearly damaging to communal peace and harmony, being
derogatory and denigrating the Prophet Muhammad (PBUH), in pursuance of
the release of a book titled Muhammad, wherein the Defendant No. 1 has used
derogatory and hurtful language against the Prophet. The contents of the said
book are so offensive that they would be distressing to even the casual reader,
let alone a follower of the religion of Islam or any person being an admirer of
the Prophet Muhammad (PBUH). Therein, the Defendant No. 1 has laid slander
upon slander, accusing the Prophet Muhammad (PBUH) of being mentally
unstable, being a womanizer, and using force and violence to satisfy his whims
and to consolidate power. The Defendant No. 1 has used such vitriolic and
venomous words and made such slanderous and calumnious statements against
one of the most revered and influential personalities of the world that make the
stomach turn and make the blood boil. Such statements and remarks made by
the Defendant No. 1 are only indicative of the Defendant No. l's own ignorance
1 Peace Be Upon Him.
CS(OS) 702/2021 Page 4 of 9
and vileness, having made such libelous remarks against the Prophet
Muhammad (PBUH). It is pertinent to note that the Defendant No. 1 is and was
fully aware of the status and sanctity afforded to the Prophet Muhammad
(PBUH) by Muslims worldwide, having been a member of the Muslim
community himself, however superficially, and was thus conscious of the
ramifications and consequences of his malicious acts and words. It is further
respectfully submitted that since Defendant No. 1 also unfortunately belongs to
Shia community therefore, the acts and deeds of Defendant No. 1, as
enumerated in detail in foregoing paras of the plaint, are detrimental to the
interests of Shia community in India as a wider message is being propagated
that the entire Shia community is being represented by the Defendant No. 1 and
2
further, that the said Shia community is indulged into maligning and
demeaning the religion as well as Prophet Muhammad (PBUH). Further, it is
respectfully submitted that the conduct of the Defendant No. 1 is prejudicial to
the inter-community harmony.
xx xx xx
12. That the Plaintiff being a scholar as well as being a follower of the
religion of Islam is directly affected by the hurtful acts and words of the
Defendant No. 1 and have thus approached this Hon'ble Court with a view to
seek remedy for the agony and pain caused by the Defendant No. 1 by making
the abovementioned statements. The Plaintiff represents the concerned citizens
of India as well as religious followers of religion of Islam and as such seeks
kind indulgence of this Hon'ble Court to restrain the Defendant No. 1 from
continuing with his nefarious designs and ulterior motives aimed towards
purposely demeaning and maligning the religion of Islam, Prophet Muhammad
(PBUH).
xx xx xx
14. That it is respectfully submitted that the purposeful derogatory and
demeaning words in the form of interviews and the purported book, as
mentioned above, being published by the Defendant No. 1 could not be said to
be protected by the fundamental right of right to freedom of speech and
expression as guaranteed under Article 19(l)(a)of the Constitution of India as
the said demeaning, slanderous and libelous statements being made by the
Defendant No. 1 are being purposely done to incite communal disharmony. It
is submitted that there exists a fine line between right to freedom of speech and
expression and license to insult. Itn is further submitted that the said
fundamental right pertaining to freedom of speech and expression, by no stretch
of imagination, allows any person to enjoy Freedom of hate speech. The
Defendant No. 1, purposely and willfully, is trying to ignite communal tension
across the country for his wrongful gains. It is further submitted that the
Defendant No. 1, being a notorious criminal, having been charged with serious
cognizable offences, is a threat to public policy and law and order situation and
if the Defendant No. 1 is not restrained, in terms of the prayer as prayed for in
the present Suit, the acts and deeds of Defendant No. 1, in addition to maligning,
defaming and demeaning the religion of Islam, could also lead to serious law
and order issues. It is further submitted that the fundamental of right of right to
freedom and expression is not an absolute right and is indeed subject to
2
(PBUH)- Peace Be Upon Him
CS(OS) 702/2021 Page 5 of 9
restrictions. It is further submitted that as per a catena of judgments
propounded by the Hon'ble Apex Court and various Hon'ble High Courts, it is
well settled that the said fundamental right, as mentioned foregoing, is not
absolute and is subject to reasonable restrictions in the interest of sovereignty
and integrity of the nation, security of the state, friendly relations with foreign
states, public order, decency and morality, and contempt of Court, defamation
and incitement to an offence.
[emphasis supplied]
5. Initially, as filed, the suit was based on the introduction of the
impugned book, which was annexed with the plaint. However, subsequently,
vide an application under Order VII, Rule 14 (3) of the Code of Civil
Procedure, 1908 [hereinafter, CPC] the counsel for the Plaintiff filed the
book in its entirety, as downloaded from the relevant website. While the said
application is not listed, since a physical copy of the publication was handed
over to the learned Court Master yesterday, the same is taken on record.
6. Without going into the merits of the case, ex facie, it is noticed that the
plaint does not invoke any provision of the CPC under which the Plaintiff has
filed the instant suit. Prayer (a) is clearly in the capacity of a representative
action, and further since the plaint states at paragraph 12 that he represents
the concerned citizens of India as well as religious followers of religion of
Islam, the Court has queried Dr. Farrukh Khan, counsel for the Plaintiff,
apropos its maintainability. Initially, the matter was listed yesterday, and Dr.
Khan took a days time to respond on this issue. Today, in his reply, Dr. Khan
has placed reliance on Sections 9 and 19 of CPC, which, in the opinion of the
Court, are not relevant and do not confer any maintainability upon the present
suit, as discussed hereinafter.
7. A representative suit for a public nuisance or other wrongful acts
CS(OS) 702/2021 Page 6 of 9
affecting, or likely to affect the public, has to fulfil the requirements of law
and it needs to be specifically averred. For such suits, amongst other
requirements as provided under Section 91 of CPC, a suit if not filed by the
Advocate General, has to be filed by two or more persons with the leave of
the Court. Under this provision, a party can perhaps approach the Court for
an illegal act which in its nature tends to cause injury of public at large.
However, for a representative action, it is indispensable that reliance is placed
upon such provisions of the statute. No such pleadings are found in the instant
case. Thus, during the course of the hearing, the Court put to Dr. Khan a
question as to whether the scope of the present suit lies within Section 91 or
Order I, Rule 8 of CPC. Dr. Khan responded by affirming that the present suit
was not filed under either of the provisions. Rather, he argued that the Plaintiff
has approached in his individual capacity and seeks to exercise a right in rem
as he is aggrieved by an insult to his religious sentiments. Dr. Khan also
argued that the objectionable content of the impugned book harms his
personal reputation as a Muslim.
8. Indeed, the Plaintiff has not invoked Order I, Rule 8 or Section 91 of
the CPC, and thus, the present suit does not fall within the purview of the
afore-noted provisions. In these circumstances, the suit lacks foundation
particularly since the reliefs sought are representative and not in personam.
9. Yet, the Court is willing to consider Dr. Khans other arguments to find
a tinge of maintainability in the present matter. Section 9 of CPC provides
that Courts shall have jurisdiction to try all suits, subject to the provisions
contained in the Code, excepting suits, the cognizance of which is either
CS(OS) 702/2021 Page 7 of 9
expressly or impliedly barred. Thus, when a legal right and its infringement
is alleged and disclosed, a Civil Court is bound to take cognizance. Obliged
by such a duty under law, the Court shall now attempt to probe into the
Plaintiffs legal right arising from the facts as disclosed.
10. On the afore-noted issue, the Court notes that, first, the decree for
damages as sought by the Plaintiff is purely a right in personam. Further, the
Plaintiff is seeking permanent and mandatory injunction on behalf of the
followers of the religion of Islam which is a right in rem. For such reliefs,
the Court has also gone to the length of considering if such an action can lie
in tort law. To maintain such a suit, it is essential that there should be a
personal legal right, a corresponding personal legal injury, and an act which
gives rise to legal or actual damage. Guided by the fact that Dr. Khan admits
to there being no reference/ remarks/ allegations of a derogatory or
defamatory nature against the person of the Plaintiff; and further that the
remarks/ allegations as alleged to be made are against his religion and its
tenets as a whole, the Court is of the opinion that the plaint certainly does not
disclose any such legal right. Any injury or hurt to personal religious
sentiments of the Plaintiff are not an actionable wrong under the law of torts.
At best, a case may have been made under provisions of criminal law, which
has certainly neither been pleaded nor would bestow any maintainability to
the case before this Court.
11. No caselaw has been shown by Mr. Khan in support of the proposition
advanced by him. A vague mention was made to an Allahabad High Court
case from 1918, but even after granting a pass-over today, the same could not
CS(OS) 702/2021 Page 8 of 9
be produced before the Court. A reference was also made to Law Commission
Report No. 267 on Hate Speech, which too, is of no consequence. Though
the fulcrum of the Plaintiffs argument centres around the reasonable
restrictions to the Defendants right of freedom of speech and expression,
these are arguments on merits, and once the jurisdiction of this Court is
ousted, the same cannot be examined by this Court in the present proceedings.
12. In view of the above, this Court is of the considered opinion that in the
absence of disclosure of infringement of any legal right, the Plaintiffs prayer
seeking injunction and damages on account of being offended or aggrieved
by the contents of a book which allegedly is hurtful to his religious
sentiments would not give him any right to approach this Court by way of
the present suit.
13. No other provision under law has been shown to the Court which can
come to the assistance of the Plaintiff to maintain the present suit, and
accordingly, it is held that the present suit is not maintainable. The plaint is
liable to be rejected.
https://www.livelaw.in/pdf_upload/svn23122021s7022021215032-406699.pdf