Hate Speech| We Are Totally Apolitical, Didn't Ask For Action Against Any One Community: Justice KM Joseph [Read Courtroom Exchange]

The Supreme Court today issued notice to all states and union territories on the issue of hate speech. The Court had, on the earlier occasion, refused to do so.

A Bench comprising Justice KM Joseph and Justice B.V. Nagarathna heard the matter. Justice Joseph said today that both the judges on the Bench are totally apolitical and that they don't care whether it is party A, party B or party C. "We only know one thing which is the constitution of India and the laws of the country", Justice Joseph said, before issuing notice to all states. The Bench also said that it won't be a party to politics.

Justice Joseph also said that the Bench did not ask for action against any one community and that action has to be irrespective of religion.

Previously, while considering an intervention application by an NGO that sought to highlight instances of alleged hate speech and hate crimes against the Hindu community in general and against the Brahmins, Justice KM Joseph made certain remarks, which lead to a controversy. In a heated exchange between the Solicitor General and the Bench, the Solicitor General asked the Bench why it did not take suo motu cognizance of the video of the hate slogans by a child in a rally in Kerala by the now banned Popular Fron of India (PFI).

Later, a Human Rights organisation had called for clarification by Justice Joseph about his controversial oral observations.

At the outset, Advocate Ashwini Kumar Upadhyay appearing in person submitted that the Court has already said that it will decide the larger issue and that written submissions are ready. He also said that all the other cases can be decided based on the decision in his case.

Senior Advocate Pinky Anand submitted that she has prayed for the state of Kerala to be impleaded in the matter.

"Why do you want the state of Kerala to be impleaded?" asked Justice Joseph. The Senior Advocate was appearing in an application that points out alleged instances of hate speech from Kerala.

The Bench then enquired about the contempt petition. ASG SV Raju responded by saying that a counter has been filed, that the order of the Court has been complied with and that FIRs have been registered in most of the cases. He said that a circular has been issued for the videography of public events.

Senior Advocate Sanjay Parikh for PUCL, an intervenor seeking to highlight alleged incidents in Maharashtra, submitted that some organisations are repeatedly indulging in hate speech and the same has to be curbed.

"That is what we said on the last occasion. We wanted the assistance from Bar as to how it could be done. That is why we said, don't start from the Apex Court, when there is already a structure in place," Justice Nagarathna said.

Senior Advocate Kirti Uppal, appearing in an intervention application relating to alleged instances of hate speech in the State of Tamil Nadu, submitted that the previous judgment of the Court on the subject should be implemented irrespective of the community involved.

"You should realise one thing. When Pasha came on that day, I don't think Tushar was there. We didn't ask for action to be taken against persons from the Hindu community, against persons of the Muslim community. We had in our order made it clear, it will be irrespective of religion. Nobody asked you to do that", Justice Joseph said.

"What pained us was that there is this complaint being brought that this great country which we are home to, which has thrown open its shores to all from all over the world at all times, there are certain elements, there is only a small group...", Justice Joseph said, when he was interrupted by a Counsel saying that by and large, we are very tolerant. "Absolutely", said Justice Joseph.

Solicitor General Tushar Mehta then submitted, "May I say something fundamental for your Lordships' kind consideration? No one, Central Government or State Government we represent, justifies any hate speech by anybody. If hate speech is made, what is to be done is laid down by Your Lordship's judgment in Tehseen Poonawalla. There are several judgments under several offences, nonetheless, offences do take place. It is not just hate speech, but other offences as well. Whenever an offence takes place, in any part of the country...". He was interrupted by Justice Joseph.

Justice Joseph said, "When you say various offences take place. This is an offence which affects.. not an ordinary offence".

The SG submitted that he has received many interlocutory applications in the matter and that the question is about the Apex Court's function and whether the Court wants to do the job of the lower judiciary.

When Sanjay Parkih pointed out alleged subsequent incidents of hate speech, Justice Nagarathna asked, "Exactly Mr. Senior Counsel, incidents after incidents are happening, whether this court, incident after incident, is going to interfere?"

SG then submitted that the matter be posted for hearing on what the Supreme Court should do in the case. "We will assist Your Lordships, there are judgments", he said.

Sanjay Parkih then submitted that a committee should be appointed in each state and Tushar Mehta submitted that there are already judgments on the subject.

Pinky Anand then submitted that this is a matter of constitutional importance and that it is a pan-India issue.

"When you say it is a pan India issue. There I would like to make a proposition. You take for example the north-east. I am just thinking, I would like to be enlightened. I don't know if you have this kind of a hate speech problem in the northeast. At least that I know of. Its very very isolated. So you can't say it is pan India. It is in certain areas, there are many reasons for it", Justice Joseph said.

"We only had public good in mind. That this should not go out of hand, that this kind of a situation should not...", Justice Joseph said.

"Lordship, we share that concern and the government also, across party lines, would have the public good in mind. They are ultimately elected representatives. But the question is where Your Lordships would draw the line. There may be 500 IAs ", the SG submitted.

"Irrespective of the number of IAs, the acuteness of the problem or the need to attend to the problem cannot be decided with reference to the difficulty we have in facing it. We may have to weigh through a lot of difficulties", Justice Joseph said.

"The question would be this. I want to come with an IA against a community, I will select and file an IA and request your Lordships to exercise the powers under 156(3). My learned friend would have some other interest, he would select some other hate speech of another community, he would bring something before your lordship by way of another IA. Can that go on?", Tushar Mehta submitted.

"This is precisely why when we passed that order, we said irrespective of religion. Why would people come with motions that action should be taken? When a framework is there...", Justice Joseph said when he was interrupted by the SG.

"Would Your Lordships not trust the Judges, under 156(3)?", the SG asked.

"See, 156(3) may not be an appropriate.. it may not adequate", Justice Joseph said when Tushar Mehta replied, "Kindly say that My Lord". "We feel so", Justice Joseph responded. "Kindly say that, that the power of the Court to direct investigation... is a judicial mandate .. power, please don't say that it is not adequate", Tushar Mehta vehemently submitted.

Senior Advocate Sunil Dalal then submitted that he has moved an intervention application with respect to some instances in West Bengal. "West Bengal is something.. very very serious going on", the SG said.

"When Vishnu(Advocate Vishnu Jain) moved an application, we had said please don't bring up old matters", Justice Joseph said, which was objected to by the SG saying, "The seriousness of the office is not something which goes away by lapse of time".

Justice Joseph then said, "For example, you have mentioned about the DMK candidate, somebody who made a statement..". Tushar Mehta interjected to say, "Nothing becomes stale. If the action is not taken, it does not become stale, crime never becomes stale".

"What I intended was, when Pasha's petition came, in the future, when anyone does anything, without waiting for anybody to make a complaint, take suo moto action. This is what I intended. I am telling you. This is not what now appears to have donned on.. that the entire thing.. whatever has happened in the history.. That is not what I intended, I can tell you", Justice Joseph said.

"What would be treated as old? Whether 5 months back, 6 months back?", the SG then asked. "If my order has not been understood, I will keep quiet", Justice Joseph said. "No, no, we have understood. The letter and sprit we have understood", the SG said.

Advocate Bansuri Swaraj then submitted that an IA has been filed with respect to incidents from Bihar. "Bihar is not a party as of now?", Justice Joseph asked. "They have chosen only Maharashtra as a party", the SG responded.

"We would like to tell you something more. When you have, both of us, are totally apolitical", Justice Joseph said. "Obviously My Lord. No dispute or doubt about it. Your Lordship need not labour on that", the SG immediately responded.

"We don't care whether it is party A, whether it is party B or party C. We only know one thing which is the constitution of India and the laws of the country", Justice Joseph said.

"That is not in question. I make it absolutely clear", the SG said. "Let us be very clear about it. That we have nothing to do with it and whatever order we have passed, our allegiance.. oath we have taken", Justice Joseph added.

"Don't bring in politics. We won't be party to that", Justice Joseph said. "I am not My Lord", Bansuri Swaraj replied adding that the issue cuts across religious communities.

"That is why we said in our order, irrespective of religion, what more do you want?", Justice Joseph asked and Swaraj submitted that she wants to intervene in the matter.

Justice Joseph then said that all interventions will be allowed.

Advocate Jatinder Kumar Sethi, Deputy Advocate General for the State of Uttarakhand submitted that the state is objecting to the maintainability of the petitions and that the same needs to be considered.

The petitioner suggested that each state should have a nodal officer who should initiate action in every case. Justice Joseph then suggested that it may be better to have a nodal officer in each district instead of each state. The petitioner also said that once hate speech is identified, an order may be required to take it down from social media. The Court asked the petitioner to explain next time the procedure for removing content from social media.

Talking about preventive measures, Justice Joseph said, "I don't know whether laws relating to preventive detention contain reference to these offences as ground for detention. One way out is, if you have people who do it on a regular basis, irrespective of the religion they belong to, again we are emphasizing, irrespective of religion, irrespective of caste, community, language, whatever they may belong to, nobody should be allowed to play with the rule of law. Once you have that situation, then everything will fall into place".

Advocate Kaleeswaram Raj appearing for an intervenor then submitted that hate speech should be resisted with free speech and not censorship. "I am afraid, in the guise of this, there cannot be a preemptive kind of thing. In the guise of tackling hate speech, there cannot be further draconian laws", he submitted.

Advocate Vishnu Jain then submitted that urgent immediate action is needed on the issue of beheading calls being made across the country. "Beheading of a specific community. This is something very very serious. I am not comparing myself with any other petitioner, but I am standing on my on footing and this very very serious incident I am bringing to My Lord's notice. I have no other prayer. I am requesting My Lords to issue directions so far as these beheading calls are continuing in this country. Lordship may kindly appreciate this fact, actual instances of beheading have happened", he submitted.

"Have you gone to the Magistrate? Has anyone gone to the Magistrate?", Justice Joseph asked asked Jain.

"My Lord, not my clients, but various other people had gone to the magistrate and had asked for registration of FIR, but no action was taken", he responded.

Justice Joseph then pointed out that the only prayer in his application is for intervention and that has been allowed. He then responded by saying that no action has been taken against the alleged perpetrators.

"If it is recent. Old, stale matter we..", Justice Joseph responded. Jain said that it is recent and that it has happened across the country.

Justice Joseph then spoke about Anurag Thakur's case, where the Delhi High Court refused to order the registration of an FIR for alleged hate speech and appeal is before the same Bench.

The Bench impleaded all the states and Union Territories, based on an application filed by the petitioner and based on the submission of the Solicitor General. The Court issued notice to all the states and UTs.

Earlier, intervention applications were filed along with applications for directions, highlighting instances of hate speech targeting the majority community.

Previously, the Court had taken serious exception to hate speeches and had said that the moment politics and religions are separated and politicians stop using religion in politics, such speeches will go away.

Cause Title: Ashwini Kumar Upadhyay v Union of India & Ors.