13 Jun 2022 12:34 PM GMT
The Delhi High Court has observed that hate speeches especially delivered by elected representatives, political and religious leaders based on religion, caste, region or ethnicity militate against the concept of fraternity, bulldoze the constitutional ethos and violates Articles 14, 15, 19, 21 read with Article 38 of the Constitution of India.Justice Chandra Dhari Singh also observed that...
The Delhi High Court has observed that hate speeches especially delivered by elected representatives, political and religious leaders based on religion, caste, region or ethnicity militate against the concept of fraternity, bulldoze the constitutional ethos and violates Articles 14, 15, 19, 21 read with Article 38 of the Constitution of India.
Justice Chandra Dhari Singh also observed that the same is in blatant derogation of the fundamental duties prescribed under the Constitution and therefore warrant stringent peremptory action on the part of Central and State Governments.
The judgment began by referring to a shloka from Bhagwat Gita which states that whatever action is performed by a leader, common men follow in his footsteps; and whatever standards he sets by his acts, are pursued by his subjects.
"The persons who are mass leaders and occupy high offices must conduct themselves with utmost integrity and responsibility. Leaders elected in a democracy like that of India, owe their responsibility not only towards the electorate in their own constituency, but also towards the society/nation as a whole and ultimately to the Constitution. It is they who are the role models for the ordinary masses. Thus, it does not befit or behove the leaders to indulge in acts or speeches that cause rifts amongst communities, create tensions, and disrupt the social fabric in the society," the Court observed.
The observations were made while the Court dismissed the criminal writ petition filed by CPM leader Brinda Karat and politician KM Tiwari against a trial court order rejecting their plea for registration of FIRs against BJP leaders Anurag Thakur and Parvesh Verma for allegedly delivering hate speeches in the year 2020.
The Court was of the view that hate speeches incite violence and feelings of resentment against members of specific communities, thereby causing fear and feeling of insecurity in the minds of the members of those communities.
It added that such speeches marginalizes individuals based on their membership in a group by using expressions that expose the group to hatred.
"Hate speeches are almost invariably targeted towards a community to impart a psychological impact on their psyche, creating fear in the process. Hate speeches are the beginning point of attacks against the targeted community that can range from discrimination to ostracism, ghettoization, deportation, and, even to genocide," the Court added.
Citing the example of exodus of Kashmiri Pandits from the Kashmir valley, the Court said:
"The methodology is not restricted to any religion or community in specific. There have been and there continue to be instances of hate speeches in different parts of the country targeted against people of specific communities, based upon the demographic composition. There have even been instances of demographic shifts in the aftermath of such Hate/Inflammatory speeches, the exodus of Kashmiri Pandits from the Kashmir valley is a prime example."
Adding that Article 19 of the Indian Constitution provides for freedom of speech and expression with reasonable restrictions and that the same is not an absolute right, the Court said that such reasonable restrictions include public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.
"Hate speeches not only cause defamation but also incite offences against a particular sect of religion of this nation," it said.
The Court thus observed that the penal law provides for sufficient remedy to curb the menace of hate speeches while adding that the executive as well as civil society has to perform its role in enforcing the already existing legal regime.
"Effective regulation of "hate speeches" at all levels is required and all the law enforcing agencies must ensure that the existing law is not rendered a dead letter. Enforcement of the aforesaid provisions is required being in consonance with the proposition "salus reipublicae suprema lex" (safety of the state is the supreme law)," it observed.
On merits of the case, the Court observed that the ACMM had not entered into the merits of the case and had decided the complaint before it on the ground of jurisdiction, on the point that he lacked the jurisdiction to entertain the complaint on merits because of want of sanction from the Competent authority to prosecute the two named individuals.
The Court was of the view that there is no reason that there should be any discretion or option left with the police to register or not to register an FIR when information is given about the commission of a cognizable offence.
"Section 156(3) unambiguously states that any Magistrate empowered under Section 190 may order an investigation into a cognizable offence. However, the Magistrate cannot act as a mere 'Post Office' in forwarding such a complaint for investigation, meaning thereby that the direction by the Magistrate for investigation under S.156(3) should not be issued as a matter of routine or passed in a mechanical manner, without application of judicial mind," the Court added.
The Court added further that in case the Magistrate, after recording evidence, finds a prima facie case, instead of issuing process to the accused, he is empowered to direct the police concerned to investigate into offence under Chapter XII of the Code and to submit a report.
"If he finds that the complaint does not disclose any offence to take further action, he is empowered to dismiss the complaint under Section 203 of the Code. In case he finds that the complaint/evidence recorded prima facie discloses an offence, he is empowered to take cognizance of the offence and could issue process to the accused," it said.
The Court further opined that a writ to compel the police to conduct an investigation or lodge an FIR can be denied for not exhausting the alternative and that efficacious remedy available under the provisions of the Code, unless the exceptions enumerated in the decision of the Hon'ble Supreme Court in the aforementioned judgment are satisfied.
"In light of the aforesaid, it is settled law that the power to issue writ has its own well-defined limitations imposed by the High Courts, one of which is the availability of alternative efficacious remedy. Considering the law laid down by the judicial precedents, the procedure laid down by the Code of Criminal Procedure and as well as the fact that alternate and efficacious remedy is available to the petitioner which is yet to be exhausted, this Court is also of the opinion that the High Court should not ordinarily, as a matter of routine, exercise its extraordinary writ jurisdiction underArticle226of the Constitution if an effective and efficacious alternate remedy is available," the Court said.
The Court concluded that the appropriate sanction of government is required for investigation under sec. 196 of CrPC. It also added that there is alternative and efficacious remedy available under the Code that needs to be taken resort of, before invoking the writ jurisdiction of High Court.
It further said that in the instant case, the ACMM had rightly decided the application before it.
"The provisions of Section 156(3) for directing investigation qua offences mentioned in Section 196 of the Code cannot be exercised by the Court without sanction. There is no prima facie irregularity that is apparent upon a perusal of the impugned order. Fourthly, the petitioners have failed to satisfy the Court and no case is made out warranting the intervention of this Court at this stage," the Court said.
Accordingly, the plea was dismissed.
About the Case
The plea refers to various speeches made by the two politicians including the speech dated January 27, 2020 given by Anurag Thakur at a rally shouting the slogan "desh ke gaddaron ko, goli maaron saalon ko".
Reference was also made to another speech made by Parvesh Verma dated January 27-28, 2020, while campaigning for Bhartiya Janata Party and subsequently in an interview given to ANI.
The plea alleges that the speech threatened use of force to remove protestors who were protesting at Shaheen Bagh in the wake of Citizenship Amendment Act (CAA) and to promote hatred and enmity against Muslim persons by portraying them as invaders who will enter houses and rape and kill people.
On January 29, the Election Commission had issued a show-cause notice to Union Minister Anurag Thakur for his "desh ke gaddaron ko" slogan. The Commission had observed in its notice that, prima facie, the remarks had the "potential of disturbing communal harmony" and the BJP MP had violated the Model Code of Conduct and electoral law.
The Chief Electoral Officer of Delhi has also sent a report to the EC concerning the West Delhi MP from BJP, Parvesh Verma's, provocative statement on Shaheen Bagh.
Vide order dated 28th August 2020, the Trial Court had dismissed the Petitioners' application filed under sec. 156(3) of CrPC seeking registration of FIR for offences under sec. 153A, 153B, 295A, 298, 504, 505 and 506 of IPC, observing that prior sanction under sec. 196 of CrPC was required even at the initial stage, which was not obtained by the Petitioners.
It was thus the case of the petitioners that the stage of cognizance does not arise at a time when directions under sec.156(3) CrPC are given, and as such, no sanction was required under either sec. 195 or 196 of CrPC for the registration of an FIR.
Title: BRINDA KARAT AND ANR. v. STATE OF NCT OF DELHI AND ANR.
Citation: 2022 LiveLaw (Del) 567
Click Here To Read Order