Content Regulation / Censorship, Hate Speech, Political Expression
Gündüz v. Turkey
On Appeal Contracts Expression
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The Madras High Court rejected the application for dismissal (quashing) of criminal proceedings initiated against senior politician, RS Bharathi. He was being prosecuted under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 for a speech made in 2020 in which he had allegedly made disrespectful statements regarding the appointment of members of the Scheduled Castes and Scheduled Tribes who had become judges at Madras High Court. The Court, prima facie, found that the offence against him was made out, and there was no reason to grant him an exceptional remedy. The Court ordered the trial court to determine whether the offense met the requisite thresholds set out in the provisions.
The petitioner was a senior Member of Parliament (MP) from a regional party, Dravidian Progressive Federation (DMK). In a large public event to commemorate late former Chief Minister and party leader, K Karunanidhi, on February 15, 2020, he allegedly remarked that persons belonging to the Scheduled Caste community were elevated to the High Court of Madras due to the alms rendered by the late Chief Minister of Tamil Nadu. This he compared to the non-appointment of any “harijan” (member of a hereditary Hindu group of the lowest social status) as a High Court judge in Madhya Pradesh.
The text from the speech read: “Afterwards, if 7-8 people belonging to Adi Dravida Community became judges, it was because of the alms of the Dravidian movement.”
This led to the filing of a complaint by a rival political leader, MA Kalyanasundaram. Thus, a First Information Report dated March 12, 2020 charged him for the offence under Sections 3(1)(u) and 3(1)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989(“the Act”) at Police Station Teynampet. These offences under s. 3(1)(u) constitute acts done to spread enmity, hatred or ill-will against the historically marginalized Scheduled Caste/Scheduled Tribe (SC/ST) community. The s. 3(1)(v) includes acts showing disrespect towards late persons held in high esteem by the SC/ST community. The penal offences are punishable with six months to five years imprisonment with fine.
On May 22, 2020, the investigation was transferred to the respondent, Assistant Commissioner of Police, Central Crime Branch. On November 3, 2020, the police filed a final report before a Special Court along with testimony of thirty witnesses. Bharathi had approached the HC to quash these proceedings on November 18, 2020 as an extraordinary judicial relief under the scope of section 482 of the Criminal Procedure Code, 1973.
He averred that he had not hurt any feelings or spread hatred against the SC community but only highlighted the historical fact of social upliftment of the oppressed communities by the DMK. In particular, he argued that the statement regarding Justice Varadharajan’s appointment was not disrespectful because it only highlighted DMK’s contribution towards the appointment of SC/ST judges. In any case, his actions could not fall within the purview of the Act as the precedent Swaran Singh & Ors. v. State [(2008) 8 SCC 435 excludes speech made within four walls of a building.
He also alleged that the police complaint was politically motivated, and has been filed by a politician linked to his party’s rival, AIADMK. Furthermore, he alleged that the complaint was based on mala fide intentions to take revenge against petitioner’s complaints against corruption by AIADMK leaders.
On the other hand, the Public Prosecutor contended that Bharathi’s statements were meant as an insult towards the merit of SC/ST members and intended to create disharmony in the society by factionalising it.
Justice N Santhish Kumar wrote the judgment.
In the judgment, the High Court dismissed the application under section 482 of Criminal Procedure Code for quashing the proceedings before the Special MP/MLA Court under section 3(1)(u) and (v) of the SC and ST (Prevention of Atrocities) Act, 1989. It reasoned that the power of quashing has to be used sparingly and the Court cannot embark upon enquiry into reliability or genuineness of the allegation made in the FIR [para. 7]. It also applied the jurisprudential standards for grant of extraordinary remedy under section 482 of Criminal Procedure Code, 1973 by fixing the threshold at “prevent[ing] abuse of the process of any Court or otherwise to secure the ends of justice”. These standards protect the accused in situations where criminal proceedings are entirely misconceived or where the offence isn’t made out even if the allegations are accepted at face value. On the application of the law on quashing laid down in Bhajan Lal v State of Haryana [1992 Supp (1) SCC 335], the Court observed:
“When the allegations put against the accused [are] carefully perused, the remarks made by the accused prima facie show that he .. has stated that.. Only the leader Karunanithi, made Mr. Varadharajan, who belongs to Schedule Caste as Judge of High Court of Madras. Similarly, 7 or 8 Judges from the Scheduled Caste were also appointed at the alms rendered by the Dravidian Progressive Federation. The statements prima facie indicate the allegations targeted against Scheduled Caste. This Court restrains itself from expressing any views as to whether such utterance attracts the offence or not. The allegations prima facie show that such statement leads inference as if except the alms [rendered by DMK], the members from Scheduled Caste would not have been become a Judge of the High Court [paras. 10-11].
These comments, in the Court’s opinion, were made in bad taste and amounted to sheer denigration of the members of the SC/ST community
It also notes that “the fact that whether the offence is attracted or not has to be decided at the stage of trial and not at this stage”, and consequently the Court was not making any decision on the satisfaction of the thresholds set out in the provisions [para. 10].
It further differentiates the facts of this case from the facts in Hitesh Verma vs. The State of Uttarakhand and another [Criminal Appeal No.707 of 2020], by stating that the allegedly insulting remarks were made in public view against persons holding high posts and other retired judges, which amounts to humiliation in public view [para. 12].
The Court dismissed the petition to quash the proceedings and ordered the trial court to conduct an expeditious trial.
However, in Hitesh Verma, the Supreme Court did in fact examine whether the offence of insult under section 3(1)(r) was made out, and held that since the alleged insult was in context of a property dispute and not for the “sole” reason to humiliate the complainant on account of her caste, the proceedings deserved to be quashed. Bharathi has appealed this decision before the Supreme Court of India, and the Court has issued notice in this case.
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