Demographic Shifts Due To Hate Speech; Delhi HC Cites Exodus Of Kashmiri Pandits While Dismissing Brinda Karat's Case

The Delhi High Court today dismissed the Writ Petition filed by CPIM's leaders Brinda Karat and KM Tiwari seeking FIR against BJP leaders Anurag Thakur and Parvesh Verma. Anurag Thakur had shouted a slogan, "desh ke gaddaron ko'' and the crowd responded with "goli maaron saalon ko". Parvesh Verma allegedly threatened to use force to remove protestors at Shaheen Bagh and portrayed them as invaders.

The Petitioners had challenged the dismissal of their application under Section 156(3) of CrPC by the ACMM-I, Delhi, recording the finding that the application was not tenable since no previous sanction was obtained from the competent authority to prosecute the named individuals.

Justice Chandra Dhari Singh's Judgment starts by quoting a shloka from the Bhagwad Gita which says 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. "..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 Judgment says.

Advocate Tara Narula appeared for the Petitioners while Standing Counsel Amit Mahajan appeared for the state.

The Court noted that the Magistrate's Court had not entered into the merits of the case and has decided the complaint before it on the ground of jurisdiction. Hence the Court noted that the only question for consideration before the High Court is limited to the extent of adjudicating whether the court below had rightly dismissed the complaint of the Petitioners.

The High Court held that the Police do not have the discretion not to register an FIR under Section 154 of CrPC when information is given about the commission of a cognizable offence.

After analysing numerous judgments of the Supreme Court, the Court also held that under Section 156(3), the Magistrate has the discretion and can, in appropriate cases, refuse to order registration of FIR.

Hate Speech

The Court observed 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.

"In fact, it 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 said.

The Bench noted that 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", the Bench observed.

The Court referred to various Judgments on the subject of Hate Speech and Free Speech, including the Judgment of the Apex Court in the matter of Patricia Mukhim v. State of Meghalaya and Ors, where the Court had said that the free speech of citizens cannot be stifled by implicating them in criminal cases unless such speech as the tendency to affect public order. "..before initiating criminal proceedings for what one thinks it to be hate speech, the words of the Hon'ble Supreme Court must be taken into consideration", the Court said.

The Court listed the existing laws about Hate Speech and said that "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)".

Section 196 of CrPC

After referring to various Judgments, the Court held that "..the legislative intent behind the provision was crystal clear that the offences mentioned under Section 196 should not be ordered to be investigated in a routine manner. If such investigations are ordered in routine manner for the offences under Section 295-A, 153-A and Section 505, that would lead to a situation where thousands of FIRs would be registered to settle scores against political opponents across the country".

The Court said that the legislature in its wisdom has incorporated a two-tier mechanism, firstly, in the form of a sanction and secondly, in the form of a preliminary investigation before granting any sanction.

Writ Jurisdiction

The Court held that 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. "..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 under Article 226 of the Constitution if an effective and efficacious alternate remedy is available", the Court held.

"Before applying the jurisprudence delineated above to the facts of the instant case, it is pertinent to take note of a worrying phenomenon thathas gained traction and is in vogue these days is of bypassing the procedure under the Code. The beauty of procedural law lies in the stages and remedies available during the course of a criminal proceeding. The High Courts have been flooded with writ petitions praying for registration of FIRs or praying for a proper investigation. If the High Courts entertain such writ petitions, it will open pandora's box and would crumble the already overtaxed system", the Court said.

The Court held that the court below rightly did not comment on the merits of the case while dismissing the application under Section 156(3) of the Code for want of sanction. "There is no prima facie irregularity that is apparent upon a perusal of the impugned order", the Court held while dismissing the Writ Petition.

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