State Is Impotent And Powerless, Why Can’t States Develop Mechanism To Stop Hate Speech? Supreme Court

Additional Solicitor General of India, Mr. SV Raju, appearing for the State, requested the Bench to grant him time to seek definite instructions in the present application. The Bench asked him to file a written response in this regard. Accordingly, the matter has been stood over to 28th April.

Court room exchange

When the matter was taken,  Advocate, Mr. Vishnu Shankar Jain, informed the Bench that he has filed an application highlighting certain other instances of hate speech. He submitted -

“It is something very very significant that I want to point out. There are beheading calls, slogans have been raised. But no action has been taken. I would like to point out certain instances that have taken place pursuant to those slogans.”

Counsel representing Sakal Hindu Samaj objected to the maintainability of the main writ petition. He argued that though allegations have been raised against his client, it has not been made party to the proceedings. He contended that, in light of the same, the writ petition should be dismissed. It was submitted that the Samaj has a right to hold processions in accordance with their own faith, which cannot be challenged by someone who has another religious belief.

“My right to hold processions in accordance with my belief, can it be challenged by someone from some other religion? That too, without making me a party; without hearing me?”

In this regard, reliance was placed on one of the issues framed by the 9-Judge Bench that was considering the Sabarimala review order.

“Whether a person not belonging to a religious denomination or religious group can question a practice of that religious denomination or religious group by filing a PIL?”

Justice Joseph was not inclined to accept the submission as the issues culled out by the 9-Judge Bench have no relevance to hate speech.

Bench highlights the importance of rule of law, brotherhood and tolerance

Acknowledging the right of the Hindu Samaj to hold the procession, Justice Nagarathna added that the manner in which the procession was conducted is being assailed in the present writ petition.

Reflecting on the importance of rule of law, brotherhood and tolerance, Justice Joseph said, “The minorities also have rights under the Constitution recognised by the founding fathers… What are you trying to say now?...Suppose everyday you sit in court & everyone in the vicinity says something bad about you...Most important thing for a man is dignity; not wealth, health. If it is being demolished on a regular basis...Some statements are made like,“Go to Pakistan”. They are those persons who had actually chosen this country.They are like our brothers & sisters…If we want to become a superpower, the first thing we need is rule of law...It speaks about brotherhood.”

The Bench allowed the intervention application filed by the Sakal Hindu Samaj.

Mr. Pasha assured the Bench that his application in the contempt petition is not religion specific. Arguing on the importance of curbing hate speech he quoted Adama Dieng, UN Special Adviser on Genocide Prevention, “The Holocaust did not start with the gas chambers. It started with hate speech.”

Apprehending Mr. Pasha’s application would open the floodgate of such contempt petitions being filed against each instance of hate speech before the Supreme Court, Justice Nagarathna stated, “But where are we going is the question. We had orators like Nehru, Vajpayee. People from rural areas used to come to listen to them. Now, people who have no stuff are making these speeches. Where are we going....But where are we going is that question. We had orators like Nehru, Vaipayee. People from other States, surrounding areas, rural areas used to come and hear their speeches. Unfortunately people who have no stuff, fringe elements on all slides are making such speeches…Now we are going to take up contempt after contempt against every person in India. Will there be no kind of restraint in the speech of the people in India? …We want to be no. 1 in the world and this is what is there internally in our society…If there is an intellectual depravement you cannot take this country as number 1 in the world and intellectual depravement only comes when there is intolerance; lack of knowledge, lack of education.”

Considering the rampant occurrence of hate speeches in India at present, the Judge reckoned, “Why can’t the citizens of this country take a pledge not to vilify anybody else in our society. What are we getting from vilification of somebody else?”

Mr Pasha apprised the Bench that there is a recurrence in the names of those who are reported to have delivered hate speeches. He submitted that though the State is bestowed with the power to take preventive action it has chosen not to do so. He implored the Bench to consider directing the State to file a status report. He added -

“ One order from this court goes a long way to ensure rule of law is adhered to. A nudge in the right direction…”

Appearing for the State of Maharashtra, Mr. Raju assured the Bench the State is not supporting the commission of any cognizable offence. He opined that it is the bounden duty of the State to register FIR.

Justice Joseph clarified, “Not only register FIR, you have to take further action.”

Petitioner being selective : Solicitor General

At this juncture, Solicitor General of India Tushar Mehta intervened to question the credibility of the petitioner, who he alleged that was being selective in seeking action. If the petitioner is really concerned about hate speeches, he should seek action against all such instances. Yesterday, the SG had questioned why the petitioner from Kerala was only targeting the incidents in Maharashtra.   

Justice Nagarathna noted that at the time the Constitution came into force such hate speeches were not prevalent, but ‘cracks are now coming in the sense of fraternity’. She asked why can't the State Governments come up with a mechanism to deal with instances of hate speech.

Justice Joseph remarked, “The moment politics and religion is segregated all this will stop.”

The Solicitor General said that a DMK party leader has made comments against Brahmins. He also urged the Bench to have a look at a video clip from a march organised by Popular Front of India (PFI) in Kerala wherein a young boy was heard chanting slogans against Hindus and Christians. On the basis of the same, he implored the Bench -

“Issue notice to Kerala also, let them respond what they have done regarding this (PFI clip)".

However, the Bench refused to take a look at the clip as the same was not on record before it. Justice Joseph said, “There is a method of doing it. He (Pasha) came up with something that was not on record, we did not permit him. We should treat all sides equally.”

Justice Joseph said that “hate is a vicious circle" and reminded that the "State will have to initiate action…”  as "every action will have an opposite reaction".

The Solicitor General said that such statements may amount to justifying the provocative slogans in the clip. He asked why the Court did not take suo motu cognisance of the PFI rally.

Petitioner's lawyer Nizam Pasha interjected to say that it does not befit the Solicitor General to indulge in "whataboutery".

Mr. Raju beseeched the Court to not let the sword of contempt hang on the State of Maharashtra. He requested the Bench to close the contempt plea in view of the fact that the State would come up with some mechanism to tackle hate speech. However, the Bench was not convinced. Justice Joseph stated, “The contempt is necessary. The message should not go that we have passed order which can be defined. Our orders have to be implemented.”  

SG also urged the bench to take note of the instances in the application filed by Mr.Vishnu Shankar Jain.

"Why are you saying that Mr. Jain’s matter be taken up? He can take care of himself", Justice Joseph said.

"I am not saying that. Only that instances in his petition be added by the petitioner and he may seek same relief for those", SG replied.

 "Let us not make this a drama. This is legal proceedings", Justice Joseph said towards the end of the hearing.

[Case Status: Shaheen Abdullah vs Union of India WRIT PETITION(S)(CIVIL) NO(S). 940/2022]