The Case of Sheikh Ali Salman [Bahrain]
Closed Mixed Outcome
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The Delhi High Court (“the Court”) observed that hateful speeches delivered by elected representatives, political and religious leaders based on religion, caste, region or ethnicity “bulldoze the constitutional ethos” and represent a “blatant derogation of the fundamental duties” under the constitution and “therefore warrant stringent peremptory action on the part of Central and State Governments.” The impugned speeches allegedly lead to defamation and incitement of offences against a particular sect of religion which could result in a reasonable restriction prescribed under article 19 (right to freedom of speech and expression) of the Indian Constitution. In the instant case, two politicians and Members of Parliament, made inflammatory speeches against protestors while rallying, portraying them as “traitors” and “invaders”. Having previously filed complaints with other police authorities (but to no avail), the petitioners subsequently filed an application for the registration of a First Information Report (“FIR”) against the politicians before the Additional Chief Metropolitan Magistrate (“ACMM”), who dismissed their application. Finally, the petitioners requested the Court to set aside the order passed by the ACMM, but the Court upheld the decision of the ACMM to dismiss their application on the basis of procedural grounds specified under the Code of Criminal Procedure, 1973 (“the Code”).
Brinda Karat (petitioner no. I), a member of the Polit Bureau of the Communist Party of India [CPI(M)] and a former Member of Parliament, and K.M. Tiwari (petitioner no. II), a member of the Central Committee of the CPI(M), in addition to being the Secretary of Delhi State Committee of CPI(M), alleged that Mr. Anurag Thakur, a Union Minister and Member of Parliament, made a “hate speech” at a rally in Rithala (Delhi) shouting the slogan “desh ke gaddaron ko” and exhorting the crowd to respond with “goli maaron saalon ko” (loosely translated, it would mean “shoot the country’s traitors”) on January 27, 2020 [para. 4]. According to the petitioners, Mr. Parvesh Verma, a Member of Parliament from West Delhi Lok Sabha Constituency, made inflammatory hate speeches while campaigning for the Bharatiya Janata Party (BJP) on January 28, 2020. He was also accused of having “threatened use of force to remove protestors at Shaheen Bagh and promoting hatred and enmity by portraying them as invaders” [para. 4].
On January 29, 2020, the petitioners made a complaint against both these politicians to the Commissioner of Police, Delhi (“the Commissioner”), asking for the registration of an FIR against them, alleging that they had committed “cognizable offences of inciting communal enmity, extending threats and making statements prejudicial to national integration.” However, the police failed to take any action. Hence, on January 31, 2020, the petitioners again sent another letter to the Commissioner, mentioning that their inaction had resulted in an incident whereby an armed man had shot at protesting students. On February 2, 2020, another letter was sent to the Station House Officer (SHO), Parliament Street Police Station, New Delhi, requesting the immediate filing of an FIR against the politicians [para. 4].
Subsequently, on February 5, 2020, the petitioners filed an application under section 156(3) of the Code, seeking the registration of an FIR before the ACMM (I), Rouse Avenue Courts, Delhi, against the accused persons for offences under sections 153A (promoting enmity between different groups on grounds of religion), 153B (assertions prejudicial to national integration), 295A (malicious acts intended to outrage religious feelings), 298 (uttering words with deliberate intent to wound the religious feeling), 504 (intentional insult with intent to provoke breach of the peace), 505 (statements conducing public mischief) and 506 (punishment for criminal intimidation) of the Indian Penal Code, 1860 (“IPC”) [para. 4]. On February 26, 2020, the investigating agency submitted a status report in which it was noted that prima facie no cognizable offence had been committed on the basis of the complaints made.
Finally, on August 26, 2020, the ACMM dismissed the petitioners’ application under section 156(3) of the Code since no previous sanction had been obtained by the petitioners from the competent authority (the Central or the State Government) for prosecution [para. 4]. Aggrieved by the said order, the petitioners filed the present writ petition before the Court to set aside the impugned order of the ACMM.
Justice Chandra Dhari Singh of the Delhi High Court presided over this case. The central issue for consideration before the Court was whether the police could be directed to register an FIR under section 156(3) and section 190 of the Code in a case where an offence related to hate speech was alleged.
The petitioners argued that the “communal, incendiary, and hateful speeches” made by Mr. Verma and Mr. Thakur led to “an atmosphere of hatred and division targeting a particular religious community” and “contributed significantly to a rise in hostility and enmity against the anti-Citizenship Amendment Act protestors, resulting in multiple incidents of threats and violence” [para. 5]. The petitioners placed reliance on Amish Devgan v. Union of India and Ors. [(2021) 1 SCC 1], where the Supreme Court had held that “the impact of hate speech depends on the person who has uttered the words and a speech by a person of influence, such as a top government functionary or political leader of following, therefore carries far more credibility and impact than a common person” [para. 6]. While relying on this judgment wherein the Supreme Court had stated that “malicious intent can be derived from the context of the speech itself, the identity of the speaker, the targeted and non-targeted group, the context and circumstances when such speech was made and proximate nexus with the harm,” the petitioners contended that the speeches in the present case were made with the “clear intent to promote hatred and enmity against persons from a particular community” which had led to multiple incidents of “threats and violence” [para. 7].
The petitioners further submitted that the hateful speeches made by Mr. Thakur and Mr. Verma referred to an identifiable set of persons who fell within a “religion” or “community” as envisaged in section 153A of IPC [para. 8] and that all the ingredients of the offences of hate speech under sections 153A, 153B, 295A, 298, 504, 505, and 506 of the IPC were made out [para. 10]. The petitioners also highlighted the “prima facie case for the commission of cognizable offences, the inaction on the part of state agencies and the non-registration of FIR,” and therefore prayed for registration of the FIR in a timely manner [para. 18].
However, the defendants argued that first, cognizance could not be taken by the Court under sections 153A, 295A or 505(1) of the IPC without the previous sanction of the Central Government or the State Government [para. 21] and second, prima facie no cognizable offence was found to have been committed and once the investigation agency came to this conclusion, the ACMM had to apply his mind to direct the registration of an FIR; however without any prior sanction, this could not be ordered under section 156(3) of the Code [para. 24].
After hearing both sides, the Court made some pertinent observations regarding hate speech and remarked 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 violate articles 14, 15, 19, 21 read with article 38 of the Constitution and are in blatant derogation of the fundamental duties prescribed under article 51-A (a), (b), (c), (e), (f), (i), (j) of the Constitution and therefore warrant stringent peremptory action on the part of Central and State Governments” [para. 2]. The Court also noted that hateful speeches result in defamation and incite offences against a particular sect of religion and therefore, are a reasonable restriction on article 19 of the Indian Constitution [para. 61].
The Court relied on Article 7 of the Universal Declaration of Human Rights (“UDHR”), Article 20(2) of the International Covenant on Civil and Political Rights, 1966 (“ICCPR”), and Articles 4 and 6 of the International Convention on the Elimination of All Forms of Racial Discrimination, 1965 (“ICERD”) to underline that hate speech violates international human rights law and that it incites “violence and feelings of resentment against members of specific communities”, causes “fear and feeling of insecurity”, “marginalizes individuals based on their membership”, imparts “psychological impact on their psyche” and leads to “discrimination, ostracism, ghettoization, deportation and even to genocide” [para. 59]. The Court also discussed various national and international judgments including Saskatchewan (Human Rights Commission) v. Whatcott [2013 SCC 11], Canada (Human Rights Commission) v. Taylor [(1990) 3 SCR 892], and Pravasi Bhalai Sangathan v. Union of India [(2014) 11 SCC 477] to highlight that the laws related to “hate speech” must be applied “objectively” [para. 72].
The Court observed that “the constitutionality of hate speech restrictions has been upheld in the interest of ‘public order’” [para. 77] and that “the statutory provisions and particularly the penal law provide sufficient remedy to curb the menace of ‘hate speeches’” [para. 78]. Hence, effective regulation of “hate speeches” necessitated enforcement of these statutory and penal provisions [para. 79].
The Court evaluated the existing penal provisions and observed that no magistrate could take cognizance of any offence punishable under sections 153A, 295A or 505(1) of IPC without the previous sanction of the Central Government or the State Government, and therefore, in the instant case, prior sanction was necessary [para. 82]. The Court also noted that the petitioners had not exercised or exhausted their alternative remedies available under the provisions of the Code; therefore a writ to compel the police to conduct an investigation or lodge an FIR could be denied [paras. 105-106].
The Court finally concluded that “firstly, the appropriate sanction of government was required for an investigation under section 196 of the Code; secondly, there was an alternative and efficacious remedy available under the Code before invoking the writ jurisdiction of this Court; thirdly, the ACMM had rightly decided the application before it that the provisions of section 156(3) for directing investigation qua offences mentioned in section 196 of the Code could not be exercised by the Court without sanction; and fourthly, the petitioners had failed to satisfy the Court and no case was made out for warranting the intervention of this Court at the current stage” [para. 127].
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Although the Court refused to pass any relief in the instant petition due to procedural irregularities, the judge noted 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 violate articles 14, 15, 19, 21 read with article 38 of the Constitution and are in blatant derogation of the fundamental duties prescribed under article 51-A (a), (b), (c), (e), (f), (i), (j) of the Constitution and therefore warrant stringent peremptory action on the part of Central and State Governments” [para. 2]. The Court also observed that if hateful speeches lead to defamation and incite offences against a particular sect of religion, they may justify a reasonable restriction on Article 19 of the Indian Constitution [para. 61].
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