Using the loopholes

A Delhi High Court bench has disallowed the filing of FIRS against two BJP leaders who allegedly made hate speeches during the anti-caa protests at Shaheen Bagh in Delhi.

Amid the controversy surrounding a BJP spokesperson’s comments about Prophet Mohammed on national television some weeks ago, which got her suspended from the party, the Delhi High Court passed a recent order that disallowed the filing of FIRS against two prominent leaders of the same party in a different context.

On June 13, the bench of Justice Chandra Dhari Singh of the Delhi High Court rightly observed 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 of the Constitution and therefore warrant stringent peremptory action by Central and State governments.”

The judge was ruling on a petition on alleged hate speeches made by a Union Minister and a BJP MP during the protests against the Citizenship (Amendment) Act in January 2020. The petitioners were former Rajya Sabha MP Brinda Karat of the Communist Party of India (Marxist) and the party’s Delhi State secretary. Their petition had earlier been dismissed by the Additional Chief Metropolitan Magistrate (ACCM) on August 26, 2020; so they approached the High Court. There were other petitions seeking similar directions from the courts.

The judge, however, while not disputing the maintainability of the petition, upheld the ACCM’S order. He ruled that prior sanction from a competent authority was required before an FIR could be registered. Section 196 of the CRPC states that the permission of the Union or State Government is required for prosecuting those accused of communal offences under sections 153A, 153B, 295A and 505 of the IPC.

WIDELY HEARD SPEECHES

The speeches referred to were videographed and reported widely in print, social and electronic media. Union Minister Anurag Thakur had called out to the crowd at a public meeting at Rithala on January 27, 2020, with the slogan “desh ke gaddaron ko”(nation’s traitors) and exhorted them to reply “goli maaro saalon ko”. (“Shoot the dogs.”) This was shortly before the Delhi Assembly election of February 2020.

The petitioners also alleged that Parvesh Varma, BJP MP from West Delhi, made inflammatory speeches the next day while campaigning, and in an interview to a news agency threatened to use force to remove the Shaheen Bagh protesters.

The petitioners had approached the Delhi Police Commissioner with a plea to register FIRS against the two leaders for inciting communal enmity, extending threats, and making statements prejudicial to national integration.

On January 31, 2020, the petitioners approached the Delhi Police again, seeking FIRS against the same two individuals in view of an incident that took place in the aftermath of their speeches: a person purporting to be a member of the Hindu Sena shot at student protesters.

On February 2, the petitioners approached the Station House Officer (SHO) of Parliament Street Police Station asking for the FIRS to be registered. When the Delhi Police did not act despite these repeated representations, the petitioners approached the ACCM on February 5 and filed an application under Section 156 (3) of the Crpc, citing offences committed under Sections 153A, 153B, 295A, 298, 504,505 and 506 of the IPC. They sought an Action Taken Report (ATR) from the

Deputy Commissioner

New Delhi district.

On February 11, 2020, the Special Investigation Unit of the Crime Branch filed an ATR. And followed it up with a status report on February 26 that said that on the basis of the allegations made, prima facie no cognisable offence was found to have been committed.

It said the word gaddar did not refer to a particular community and therefore did not amount to an offence. It further said there was no connection between the speeches and the violence that followed. Riots took place in North East Delhi between February 23 and 29, claiming 53 lives, mostly from the minority community.

On August 26, the ACMM’S office dismissed the application on the grounds that the complainants did not have the prior sanction of the competent authority.

PRIOR JUDGMENT

of

Police,

In the petition filed with the Delhi High Court, the petitioners referred to a December 2020 Supreme Court judgment (Amish Devgan vs Union of India & Others) where it was held that hate speech made by a person of influence, a government functionary, or a political leader of following carried far more credibility and impact than one made by a common person. Malicious intent, the Supreme Court had held, could be derived from the context of the speech, identity of the speaker, the targeted and non-targeted group, the circumstances when such speech was made and proximate nexus with the harm. Based on this, the Supreme Court had refused to quash the FIRS registered against journalist Amish Devgan for his remarks against Sufi saint Khwaja Moinuddin Chisthi.

The petitioners said that in this instance too the speeches were made by influential political leaders to large groups of people during elections with the clear intent of promoting hatred and enmity against a particular community; the hate speeches referred to an identifiable set of persons and such persons fell within a “religion” or “community” of persons as envisaged in Section 153 A of the IPC. Besides, the context in which the utterances were made constituted hate speech. Therefore, they argued, the police should have registered an FIR.

It was settled law, they argued, and no prior sanction ought to be required. In the event of an FIR not being filed, it was within the powers of the magistrate to direct an investigation under Section 156(3) of the Crpc. They argued that no sanction from competent authorities under Section 196 of the CRPC was required to file an application under Section 156(3) of the Code. They quoted previous Supreme Court judgments to show that prior sanction was necessary only in cases where the Prevention of Corruption Act was involved.

Counsel for the respondents, however, quoted Section 196 of the CRPC to say that the court cannot take cognisance of any offence punishable under Chapter VI or under

Malicious intent, the Supreme Court had held, could be derived from the context of the speech

Section 153A or 295A or sub-section 1 of Section 505 of the IPC without prior sanction.

For certain offences, including hate speech, the permission for an FIR has to come from the government. This leaves ample legroom for selective application of the law. When lawmakers belonging to the party in power fall foul of the law, the government is unlikely to sanction the initiation of criminal proceedings against them.

In this instance, while ruling that prior sanction was required for prosecution of offences against the state, the court did not consider the petitioners’ plea that sanction was required only after the court took cognisance after the filing of the charge sheet. And that for the purpose of giving directions for investigation under Section 156 (3) Crpc no sanction is required.

SEVERAL CONTRADICTIONS

Interestingly, the judgment has several contradictions. It observed that “the only condition precedent for registering an FIR is that the information should disclose a cognisable offence. The requirement of Section 154 of the Code is that the report must disclose the commission of a cognisable offence and that is sufficient to set the investigating machinery into action.”

The judgment also noted that several options can be exercised if an FIR is not registered. Any magistrate is empowered under Section 190 to direct the registration of a FIR, but magistrates can use their discretion to refuse to do so as well.

The judgment also pointed out that hate speeches incite violence and resentment against members of specific communities, cause fear, insecurity, discrimination, ostracism, and ghettoisation. Quoting the Supreme Court, the judgment said that the law for hate speeches must be applied objectively and the problem lay in its non-execution.

The judgment, however, also asserted that if offences under Section 295A, 153A or 505 were investigated routinely, thousands of FIRS would be registered to settle scores against political opponents resulting in an abuse of the process and choking the already burdened judicial machinery.

Yet, the truth is that the sections mentioned by the court have been invoked freely against comedians, journalists, film-makers, and FIRS have been promptly registered. One recalls that Patricia Mukhim, the editor of Shillong Times, had written a social media post in July 2020 demanding that action be taken against some young tribal men for attacking six non-tribal youths. She was booked under Section 153 A for spreading communal disharmony. It took the Supreme Court to quash the FIR.

The bench found fault with the petitioners for approaching the Commissioner of Police rather than the SHO and said they should have approached the revisional court after their petition was dismissed by the ACMM.

REASONING IGNORED

A criminal lawyer, speaking on condition of anonymity, told Frontline that the petitioners were not incorrect in their reasoning. He explained that it was only after registration of the FIR that the police would have to file a charge sheet. Sanction is required only at this stage. He pointed out that nothing prevented the court from saying that a crime had been committed and that an FIR needed to be registered. This was taking cognisance of a cognisable crime, which was different from directing the police to investigate.

It might be recalled that in 2020, and then again in December 2021, the Supreme Court had asked the Delhi High Court to dispose of pleas seeking the registration of FIRS against prominent BJP leaders who had allegedly made inflammatory speeches before the riots broke. The petitioners in that case were victims of the violence.

A division bench of the High Court headed by Justice S. Muralidhar and Talwant Singh viewed the video clips of the speeches and directed the Delhi Police to register FIRS against Kapil Mishra, Anurag Thakur and Parvesh Varma for their inflammatory speeches. That did not happen. The next day Justice Muralidhar was transferred to the Punjab and Haryana High Court. m

UNION MINISTER Anurag Thakur. In January 2020, he had exhorted his audience at a public meeting to “shoot” the “traitors”.

THE SHAHEEN BAGH protest site on Republic Day, 2020. Parvesh Varma, BJP MP from West Delhi, had made inflammatory speeches while campaigning and threatened to use force to remove the Shaheen Bagh protesters.

A FLAG MARCH by security personnel during the riots that engulfed North East Delhi in February 2020. The riots claimed 53 lives, mostly from the minority community.