New Delhi: The Delhi high court on Monday, June 13, dismissed a plea challenging a trial court’s refusal to direct the registration of a first information report (FIR) against Union minister Anurag Thakur and his Bharatiya Janata Party (BJP) colleague Parvesh Verma for alleged hate speeches
The order was pronounced by Justice Chandra Dhari Singh who had reserved the verdict on March 25. He said that the petitioners – which included Communist Party of India (Marxist) [CPI(M)] leaders Brinda Karat and K.M. Tiwari – had failed to follow the prescribed mechanism under the Code of Criminal Procedure (CrPC).
The trial court had, on August 26, 2021, dismissed the petitioners’ plea seeking registration of FIR on the ground that it was not sustainable as the requisite sanction from the competent authority, the Union government, was not obtained.
The petitioners claimed before the high court that a cognisable offence was made out against the two leaders in the present case and an FIR should be lodged against them for their alleged hate speeches concerning the anti-Citizenship Amendment Act (CAA) protest at Shaheen Bagh and that they were only asking the police to investigate the matter.
According to Indian Express, the petitioners in their plea before the high court said, “The petitioners/complainants, already aggrieved by the failure of the police to register an FIR for the commission of cognisable offences amounting to hate speech, have now been relegated… to seek sanction from the State/Centre, a sanction which is a statutory requirement for taking cognisance, not investigation.”
The petitioners then went on to say that the dismissal of the complaint for the want of sanction means asking the complainant to step in the shoes of the investigating agency and make a case for prosecution before the sanctioning agency.
“Any application for sanction by the complainant at this stage would be without the benefit of materials and evidence obtained during the investigation,” the petitioners argued, as per the IE report.
The Delhi Police, however, defended the trial court order in the high court, saying that the trial court rightly held that it did not have jurisdiction to deal with the case. In support of its argument, the Delhi Police referred to the Supreme Court’s judgments, which said that if a judge is saying he does not have jurisdiction, he should not comment on merits and that is the right approach.
The high court noted that when information is given to the police about the commission of a cognisable offence, there should be no reason for discretion to be left with the police on whether or not to register an FIR.
“Section 156(3) unambiguously states that any magistrate empowered under Section 190 may order an investigation into a cognisable offence. However, the magistrate cannot act as a mere ‘post office’ in forwarding such a complaint for investigation, meaning thereby that direction by the magistrate for investigation under Section 156(3) should not be issued as a matter of routine or passed in a mechanical manner, without application of judicial mind,” Live Law quoted the court as saying.
However, the court concluded that the additional chief metropolitan magistrate of the trial court had acted rightly in the matter because the appropriate sanction of the government is required for investigation under Section 196 of the CrPC.
“The provisions of Section 156(3) for directing investigation que offences under Section 196 of the CrPC cannot be exercised by the court without sanction. There is no prima facie irregularity that is apparent upon perusal of the impugned order,” the court concluded, dismissing the plea.
Also read: ‘If Something Is Said With a Smile, Then There Is No Criminality’: Delhi HC on Hate Speech
Petitioners claims
The petitioners had claimed in their complaint before the trial court that Thakur and Verma had sought to incite people as a result of which three incidents of firing took place at two different protest sites in Delhi.
They had mentioned that at the Rithala rally here, Thakur had, on January 27, 2020, egged on the crowd to raise an incendiary slogan “shoot the traitors” after lashing out at anti-CAA protesters.
They had further claimed that Verma had, on January 28, 2020, allegedly made incendiary comments against the anti-CAA protesters in Shaheen Bagh.
Ahead of the Delhi assembly elections, in January 2020, Anurag Thakur was seen leading a crowd with the slogan “Desh ke gaddaron ko…” to which the response came, “goli maaro saalon ko”. The chant can be translated to “shoot the traitors to the country”.
On the other hand, Parvesh Verma had called the Shaheen Bagh protesters “rapists and murderers”, and said that the people of Delhi should “act now” (and vote for the BJP) and Prime Minister Narendra Modi and home minister Amit Shah “would not save them later.”
“The people of Delhi know that the fire that was set in Kashmir a few years ago, and the mothers and sisters of Kashmiri Pandits were raped, that fire then was set in UP, in Hyderabad, in Kerala. Today that fire has been set in a corner of Delhi [Shaheen Bagh]…That fire could reach the houses of Delhi at any time; it could reach our houses. The people of Delhi need to think through their decision,” Verma had said.
High court’s observations on hate speech
The high court did, however, come down heavily on hate speech, particularly when delivered by elected representatives.
“The persons who are mass leaders and occupy high offices must conduct themselves with utmost integrity and responsibility,” the court observed.
Calling elected leaders “role models” for the country at large, the court said, “Thus, it does not befit or behove leaders to indulge in acts or speeches that cause rifts amongst communities, create tensions, and disrupt the social fabric of society.”
The court further observed that hate speeches serve to marginalise individuals on the basis of their membership to a particular social group.
“Hate speeches are almost invariable targeted towards a community to impart psychological damage to their psyche, creating fear in the process,” the court said. “Hate speeches are the beginning point of attacks against the targeted community that can range from discrimination to ostracism, ghettoisation, deportation and even genocide.”
Further, the court said that hate speeches are not confined to a specific community and, giving the example of the exodus of Kashmiri Pandits, spoke about how hate speeches can even result in demographic shifts.
While the court observed that penal law can sufficiently curb hate speeches, it stressed that the executive and civil society have a role to play in enforcing the existing legal regime.
“Effective regulation of hate speeches at all levels is required and all law enforcement agencies must ensure that the existing law is not rendered a ‘dead letter’. Enforcement of the aforesaid provisions is required, being in consonance of the proposition ‘salus republicae suprema lex’ (safety of the state is the supreme law),” the court noted.
(With PTI inputs)
