The atmosphere in the country was being “sullied by hate speeches”, the Supreme Court observed on October 10, even as, in an ongoing hate speech case, both the Delhi and Uttarakhand governments were ordered by the Supreme Court to file reports on specific steps and action taken in response to complaints about two different politico-religious festivals where such hate was common currency. During this hearing, the union government assured the court of “zero tolerance” when dealing with any incidents giving a call to sectarian (intra-community) conflict.
Through this, the Supreme Court has now three benches looking at this increasingly concerning phenomenon that is corroding the public atmosphere. The latest of these cases is a freshly filed public interest litigation (PIL) that has prayed for guidelines against the backdrop and political conspiracies that resulted in such hate speeches. The second case, an ongoing one, now sought to hold the police chiefs of Delhi and Uttarakhand in contempt for failing to take action against spiteful remarks made at politico-religious events in December, 2021. The third was a matter that is also pending before a third bench that came up in September.
1. Plea On Hate Speeches Being Laced With Criminal Conspiracy
“Every time hate speech is done (uttered), it is like an arrow that never returns.”
The Supreme Court commented that hate speech is undoubtedly sullying the nation’s atmosphere and needed to be curbed. However, the court was clear that omnibus petitions without specific and detailed instances were difficult to adjudicate upon. The bench comprising CJI UU Lalit and Justice Ravindra Bhat while hearing a plea about hate speech being mixed with criminal conspiracy, has now asked the petitioner to file specific instances of hate speech instead of giving a vague overview of the problem. The petitioner may have a legitimate argument to claim that hate speech is polluting the entire atmosphere and that it has to be stopped, said Chief Justice of India UU Lalit. However, for the court to take cognisance, there must be a factual foundation.
The court stated that “…as a citizen, perhaps you may be right in saying that the entire atmosphere is getting sullied as a result of these hate speeches and perhaps you have every justifiable ground to say that this needs to be curbed,” as reported by the media.
In the PIL, advocate Harpreet Mansukhani Saigal, the petitioner has claimed that a larger conspiracy is afoot to turn India into a police state, victimising the average person in the most arbitrary and unconstitutional ways possible. This amounted to, it was argued, waging war against civilians through state-sponsored violence, with proponents of such hate speech being hand in glove with central agencies, and “terror” groups. She further suggested that in order to fully comprehend the depth and seriousness of the situation, one must comprehend hate crimes as discriminatory acts directed against a certain (vulnerable sections) of the population because of their gender, religion, and other characteristics.
During the hearing widely reported by several media outlets including Livelaw, she stated that, “In the petition, in the synopsis, I have mentioned that the intentional motive here was to commit hate crimes with a weapon called hate speech to target and jail the minority communities, to win the majority Hindu votes, to grab power at all posts, to commit genocide and make India a Hindu Rashtra before 2024 elections. With a heavy heart I have to say, to give effect to this vicious and malicious plan, the respondents mentioned in the petition killed common people from the minority…72 hate speeches mentioned in the petition, the hate speech delivered at the Dharam Sansad and the hate speech mentioned in Kashmir Files cannot be taken as isolated cases but (are actually) grave conspiracies.”
The PIL has arrayed 42 parties as respondents, including the Centre, prime minister, Narendra Modi, and union minister for home affairs, Amit Shah. The weapon of hate speech has been purposely utilised with a goal to conduct hate crimes, give power to the Hindu majority, and commit genocide before the 2024 elections, the petitioner further added during the hearing.
In order to put this (conspiracy) into effect, the petitioner further alleged that hate speeches were being delivered at dharma sansads (politico-religious gatherings), while individual journalists and celebrities like Sushant Singh Rajput were killed, and minorities were slaughtered.
The petitioner claimed that the ruling party funded “The Kashmir Files” movie and exempted it from taxes, while giving an example of hate speech as something that had been converted into a “profitable business.” She also said that the BJP officials had acknowledged or admitted to “murdering people from minority communities and obtaining their arrest” in public statements.
She stressed that these were not solitary or isolated instances but had a recurring pattern. “The representation of hate speech has been mentioned earlier by many lawyers, 76 lawyers, to the ex-CJI Ramana to take suo moto cognizance and investigate action against targeting of Muslim community. Yet there has been no action. Service chiefs, army veterans, retired bureaucrats and citizens had written a letter to the Prime Minister. Notifications Powered by iZooto and the ex-president on January 2, 2022 speaking of “harms of participating in genocide” but there has been a stony silence, no response. On September 1, 2022, while hearing a matter related to the attack on MPs in Haryana, UP, MP, Karnataka and many other places, the honourable Justice Chandrachud and Justice Hima Kohli gave two months to seek status report. They said that they had earlier laid down guidelines in the Tehseen Poonawalla order.”
The petitioner emphasised on more instances of hate speech and said that in a previous case she had filed, ex-CJI Mr. Ranjan Gogoi had issued a ruling stating that hate speech should not be permitted during elections. The petitioner claimed that Mr. Yogi Adityanath and Ms. Mayawati had been prohibited from speaking, and that the election commission had said that FIRs may be filed in situations where hate crimes are committed.
The CJI pointed out that the petition implied that certain people had engaged in hate speech, and that the petition was for the court to punish crimes against the country. The court doesn’t have information on these cases, including when they were registered, the CJI stated. The CJI further advised the petitioner to should focus on specific instances of hate speech, what transpired, and if at all, the authorities had acted or intervened.
As reported by LiveLaw, CJI Lalit while seeking details on particular instances of hate speech orally remarked that “We don’t even know what are the details of those particular crimes, what is the status, what is your say, who are the persons involved, whether any crime was registered not registered etc. You may be right, perhaps, in saying that the entire atmosphere is being sullied as a result of hate speeches. Perhaps you have every justifiable grounds to say that this needs to be curbed. But this kind of ominous petition under Article 32 cannot be. According to us, if you can have assistance of a senior counsel of this court as amicus, then we can see.”
The bench stated that the petition contains 58 instances of hate speech, and instead of providing the court a general impression, the petitioner should focus on recent incidents and provide specific information, such as whether or not a crime was committed, registered, the identity of the perpetrators, progress of the investigation, etc.
“What happens for a court to take cognisance of certain things, there must be factual background. You may concentrate on maybe a case or two. Something or the other in form of petition, in one of the cases by way of sample that you can give. This is too random a petition saying that there are 58 instances where someone made a hate speech. Rather than giving us a vague idea, you concentrate on immediate instances”, the CJI said remaining unconvinced about what specific orders could be issued.
In the current PIL, it has been argued that deliberate unlawful acts against the country had been perpetrated in order to commit hate crimes by targeting members of minority communities and using hatred and violence to win the support of the Hindu majority, transforming India into a Hindu Rashtra, and overthrow the state governments that were not BJP-ruled. The petitioner claimed that the intent and pattern of hate crimes have upended the foundations of democracy and sparked instability across the country.
The Court directed the petitioner to submit a supplementary affidavit by October 31 that also included specifics regarding the alleged offense and any measures made in the course of the inquiry. The case will now be listed next on November 1.
2. Contempt Plea alleging inaction in the Dharma Sansad Hate Speech Cases
The Supreme Court, on October 10, also ordered the Uttarakhand Government and the Government of NCT of Delhi to file affidavits outlining the facts and the action they have taken in response to a contempt petition alleging blatant and disobedient failure on the part of the DGP, Uttarakhand Police and DGP, Delhi Police to take action with regard to hate speeches made by prominent individuals in Dharma Sansad in the State of Uttarakhand and an event organized by Hindu Yuva Vahini in the national capital.
Justices DY Chandrachud and Hima Kohli’s bench issued the ruling after hearing the contempt petition filed by activist Tushar Gandhi. The court stated that it is not serving notice on the claim of contempt at this time and is simply looking for comments from Delhi and Uttarakhand on what steps have been done in response to the hateful remarks made during the Dharam Sansads. “Not issuing notice in contempt. Meanwhile, the State of Uttarakhand and GNCTD shall file affidavits explaining the factual position and actions that have been taken,” the court statwed.
Given that Attorney General for India, R. Venkataramani took charge of his office only a few days back, the Bench asked the matter to be listed after 4 weeks so that he has the benefit to go through the contempt petition. “I would need time to take stock of what can be done. Three affidavits in response have been filed,” said AG Venkataramani, as reported by the media. Venkatramani also added “there has to be no tolerance for this.”
In his appearance on behalf of the petitioner, advocate Mr. Shadan Farasat promised to deliver a copy of the contempt petition to the counsel assisting the AG. Additionally, liberty was provided to serve the petition on the state governments in question.
Tushar Gandhi, a social activist and the great-grandson of Mahatma Gandhi, filed a contempt petition against the then-District General of Police of Uttarakhand Ashok Kumar and the then-Chief of the Delhi Police Rakesh Asthana in January of this year, alleging that the controversial three-day conclave, ‘Dharma Sansad’ were permitted to take place in Haridwar from December 17-19, and an event in Delhi held on December 19, 2021 by members of Hindu Yuva Vahini. According to the petitioner, the said conclave was conducted in defiance of orders issued by the Supreme Court in 2017 that called for prevention of hate speech. Mr. Farasat submitted that the police of the concerned States have not taken any action pursuant to the judgment of the Apex Court in Tehseen S. Poonawalla v. Union of India, wherein guidelines laid down regarding preventive, punitive, and remedial measures with respect to mob lynching. He emphasised that the speech was explicitly hateful and in the nature of calling for mass extermination of a minority community, amounting to ‘genocidal hate speech.’
Gandhi was also one of the petitioners in the Tehseen S Poonawalla versus Union of India (2018 verdict) in which guidelines were laid down for curbing hate speeches and lynching, he said.
He added that out of nine people who made hate speech at the above-mentioned events, only two have been arrested and seven have not been proceeded against. “This is not just hate speech, but a call for violence and extermination of a particular community. In the Uttarakhand Dharam Sansad, nine people have made speeches at the Dharam Sansad. Only two were ever arrested. Others have not even been arrested. These speeches were very direct. Nothing ambiguous about it. The Sansad was allowed to be held despite complaints to the local authorities,” argued advocate Shadan Farasat, as reported.
The petition claims that even though the hate speeches were made publicly available right away, it still took the Uttarakhand police four days to file a FIR—and even then, action was only initiated against one person—even though there were at least seven other people present when the Dharma Sansad in Haridwar was where the genocide of a minority community was called for. Names of Annapurna Maa, Dharamdas, Sagar Sidhu Maharaj, and Yati Narsinghanand Giri were only included in the FIR as a result of sustained public uproar and social media outrage.
On November 1, 2022, almost two weeks after the incident, a second FIR was filed against Yati Narsinghanand Giri, Sindhu Sagar, Dharamdas, Parmananda, Sadhvi Annapurna, Anand Swaroop, Ashwini Upadhyay, Suresh Chahwan, Prabodhanand Giri, and Jitendra Narayan Tyagi, but only under Sections 153A and 295A of the IPC; whereas the nature of the hate speech was grave enough to attract 121A 124A, Sections 15 & 16 of the UAPA read with section 120B of the IPC along with Sections 153B, 295A, 298, 505 and 506 of IPC. The Delhi Police had not yet reported the hateful remarks spoken during the Hindu Yuva Vahini event as of the time the contempt suit was filed, around January 6, 2022.
Regarding the Haridwar Dharam Sansad, the petition draws attention to the fact that the FIR was not filed for more than two weeks, and media reports suggested that police officials and municipal authorities were involved. About Delhi, the plea makes note of the fact that no FIR was lodged regarding the hate statements for several weeks prior to the filing of the petition.
“Deliberate inaction of the police authorities of Delhi is evident from the fact that till date no FIR has been registered against any one present at the event organised by the Hindu Yuva Vahini, including Suresh Chavhanke, the Editor in Chief of Sudarshan News, who along with others had administered Nazi type Genocidal Oath promising India to become a ‘Hindutva Nation’ and further inciting the public to resort to violent means to achieve the same,” says the petition, as reported by IndiaToday.The Supreme Court is now likely to take up the matter in the last week of November.
3. On September 21, the Justice Joseph-led bench bemoaned the absence of a legislative framework that may act as a deterrent against such statements being spread through televised discussions and referred to hate speech as a “poison” harming the social fabric of the nation. The Centre was given two months by this bench to decide if it wants to introduce legislation making “hate speech” a criminal offense. On that very day, the Supreme Court said that TV networks were utilizing “hatred and all such hot things” to boost their ratings. It questioned why the government was acting as a “silent spectator” and stated that a TV host had a responsibility to stop hate speech from airing.
In this analytical piece, the legal research team of Citizens for Justice and Peace (cjp.org.in) had evaluated the deepening Indian jurisprudence on hate speech.
Developing Indian jurisprudence on hate speech
In these clutch of matters, previously, on July 20, 2022, Supreme Court had asked the secretary, Ministry of Home Affairs, Government of India, to compile information regarding preventive, corrective and remedial measures taken by state governments, so far, in compliance with its earlier judgment. The Centre is yet to place before the court the compilation and has now been directed to do so, in the form of a booklet, within a period of six weeks.
Referring to compliance with the slew of directions passed by the Court in Kodungallur Film Society v. UoI, Tehseen Poonawalla v. UoI and Shakti Vahini v. UoI, an earlier bench comprising Justices AM Khanwilkar, AS Oka and JB Pardiwala had stated, “We request the Secretary, Home Department, GoI to collate necessary information from the respective State/UTs in respect of matters referred to in the common chart to be made over by the counsels for the petitioner in one week. The information essentially would be in respect of matter in nature of compliance with directions and observation in the afore-stated decisions to provide for preventive, corrective and remedial measures from arresting untoward situations that occur and are referred to in the petitions.“
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