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Synopsis

A division bench of the Bombay High Court comprising Chief Justice Devendra K Upadhyaya and Justice Arif Doctor on Monday sought Central Government and State Government's response to the PIL seeking guidelines for derogatory remarks against the dead persons on social media and press.

The high court was hearing a Public Interest Litigation filed by Sandip Marve, trustee secretary of Maharashtra Gandhi Samrak Nidhi (MGSN).

The high court asked the petitioner to remove the name of Sambhaji Bhide while noting that there would be other people who would have stirred the minds of the petitioner.
"The utterances are not the only by Bhide, there are also others, right? They might have also stirred the minds of the petitioner. Your claim that the cause of action is only because of Bhide's utterances is not right, we feel", the bench said.

Senior Advocate Anil Anturkar appearing for the petitioner submitted that if Bhide's name was deleted then the issue would become academic.

The plea also sought to allow followers of people of historic importance to file cases under sections 499 and 500 of IPC which currently only close relatives could file. 

The division bench asked Anturkar whether the court would be transgressing into policy-making decisions

"Legislation has expressly said relatives. Can we expand the scope? Will that not be trangressing policy making decisions. Are you not inviting us to make policy making decisions. That's one query. What acts will be a criminal offence? Can all this be ascertained by us? It has to be ascertained by the executive or legislature. We cannot say that a particular act is a crime," the court said.

However, the Anturkar responded and said that they would only press for prayer clause b of the petition which sought guidelines to be issued by the court to prevent derogatory remarks against the dead. 

Advocate General Birendra Saraf appearing for the State Government submitted that,
"Prayer clause b says direct the state to identify persons in high esteem and declare the list. This is so subjective that creating a list. To have an exhaustive list in high esteem is incapable of implementation. Every group has its own views who are held in high regard. There is civil and criminal defamation. My submission is that he has invited your lordship to legislate. The court cannot come and frame the legislation of what can be done and what cannot be done," AG submitted.

The bench then said that the IPC was enacted in 1860 but the constitution was enacted later that contained a provision about sectional diversity under Article 51A
"You are saying that the field was enacted by parliament in 1860. The Constitution was not there. Pls see article 51A (b)&(e). This provision was not there when 499 500 were enacted. (E) is also sectional diversity. What we want to know is that you say the field was occupied by legislation in 1860. We can't say the field is occupied so far as dead people are concerned considering sectional identity," the bench said.

AG responded to it and said that steps could be taken by states and awareness could also be made about it.

Additional Solicitor General Devang Vyas submitted that the petitioner in its plea said that those videos were obscene for which remedy is available under Sections 292 and 294 of the IPC.

The bench however admitted the petition in terms of clause b. The court however directed the petitioner to delete Sambhaji Bhide as a party to the petition who had made derogatory remarks against Mahatma Gandhi. 

The high court said that it would appoint amicus for assistance in framing guidelines. 

Case title: Kumar Saptarshi & Ors vs State of Maharashtra & Ors