Yesterday (May 17), was the last day of the hearing of both hate crime and hate speech matters before the a two-member bench led by Justice KM Joseph, as the Supreme Court judge is set to retire on June 16 (May 19 is his last working day before Court closes for summer vacations). The second matter, petition filed by Shaheen Abdullah wherein states of Uttarakhand, UP and Delhi initially and all states, including Maharashtra thereafter were specifically brought under scrutiny, Both matters have been adjourned to August 2023.
During the previous hearings in the hate speech case, Justice Joseph has expressed serious concerns about the rise in hate speeches and the inaction of authorities against it. The bench has also passed key directions underlining statutory duries of law enforcement authorities to prevent and prosecute hate speech. These directions have been addressed to the police in all States and UTs should take suo motu action against hate speech offences, irrespective of religion, without waiting for any formal complaint.
In the first case, that of a hate crime committed against a Muslim sexagenarian, who was assaulted in Noida, the bench passed telling remarks,
“I do not think anyone has any interest other than the best interest of our nation. The only point is, when you take action promptly – irrespective of religion, irrespective of anything else – and just make [India] into a country ruled by the rule of law. There will be no problems”, Justice Joseph said on Wednesday, May 17.
In this case the bench was dealing with a batch of petitions seeking directions to regulate hate speech and also another petition filed by an individual who alleged inaction by Noida police in investigating a hate crime committed against him. To tackle the growing menace of hate crimes, especially against minorities, the directions issued by the Supreme Court to curb hate speech would have to be extended to hate crimes as well, Senior Advocate Huzefa Ahmadi had suggested during his arguments.
The senior lawyer was representing a Muslim sexagenarian who has approached the court stating that he was a victim of a hate crime in July 2021. Not only this, but the elderly Muslim man also alleged that he had to run from pillar to post for the police to take cognisance, which finally concluded that the crime committed against him was not a hate crime, but a simple theft. “I am certain when the matter is taken up on the next occasion, it will be taken to its logical conclusion,” Justice Joseph replied to Ahmadi’s suggestion to extend the court’s directions regarding hate speech to hate crime.
The senior counsel also expressed his gratefulness for the intervention of the top court, saying, “Everything started moving only after this court demanded to see the case diary. After that, the State acknowledged that there was a crime and registered an FIR. I am grateful.” However, before concluding, he pointed out that certain sections had not been included in the FIR which ought to have been included. He also told the bench that he had prepared a note on the issue of awarding compensation for the delay in registering a police complaint. Ahmadi further said:
“There is a preambular promise of fraternity. That is what was impinged upon here. Registering an FIR in respect of a hate crime promptly is also in aid of that particular goal.”
The senior counsel also requested the bench to hear this matter separately. “The issue of hate speech is a distinct from this issue,” he said. The matter was adjourned to August 4. The other batch of hate speech cases was also adjourned to August.
Background of Hate Crime Case
In July 2021, 62-year-old Kazeem Ahmad, a resident of Delhi’s Zakir Nagar, was reportedly waylaid, assaulted, and looted by four persons in Noida. The elderly Muslim man has claimed that he was targeted only because of his religion and was a victim of a hate crime. He has also accused the Uttar Pradesh police, under whom Noida falls, of wilful inaction, saying that despite visiting his house, police personnel refused to accept his written complaint.
Subsequently, Ahmad moved the Supreme Court, seeking action against the erring officers as well as compensation for victims of hate crime. Senior Advocate Huzefa Ahmadi pointed out before a bench of Justices KM Joseph and BV Nagarathna that the state government, while recording the crime as a ‘theft’, refused to register it as a hate crime. “There is hesitancy on the part of the state government to register these crimes. They want to bring down the number of these crimes so that the criminal record shows that there are no hate crimes,” the senior counsel told the bench.
However, senior advocate and UP additional advocate-general Garima Prashad strongly opposed this statement, saying, “This itself is a media-driven allegation and case.” Upon investigation, she claimed, no evidence was found suggesting that religious slurs or manhandling was involved.
“How did the police come to the conclusion that this was a case of theft? Were there witnesses? Do you have the case diary?” the bench asked the law officer, who replied that the government had verified everything and filed a detailed counter-affidavit. She also stressed that the entire investigation was carried out by the Delhi police and that allegedly there were contradictions in Ahmad’s statements. However, the opposing counsel exclaimed, “The attitude of the state is that the victim is a liar.” He also said that the police routinely discouraged people from filing such cases, especially if they belonged to minority communities.
“Both sides can’t be true. We would like to know where the truth lies,” the bench said, as it directed the State of Uttar Pradesh to be ready with the case diary and other records for the perusal of the court. The bench also cautioned that ordinary people would become ‘innocent victims’ if cases involving hate speech were not taken seriously.
Earlier directions passed by Justice Joseph’s bench in hate speech cases
Last year in October, a bench headed by Justice KM Joseph directed the Governments of NCT of Delhi, Uttarakhand and Uttar Pradesh to take suo motu action against any hate speech crime, without waiting for any complaint. Failure to take action against incidents of hate speech – irrespective of the religion of the maker of such speech – would be contempt of court, the bench warned. While issuing a set of interim directions to curb hate speech, the Supreme Court had clearly observed, “There cannot be fraternity unless different religious communities are available to live in harmony.”
Please also Read: How Supreme Court has interpreted Hate Speech
Subsequently, several incidents of hate speech were brought to the notice of the top court. In February 2023, one Shaheen Abdullah approached the court through counsel Nizam Pasha seeking a ban on an impending meeting of the Sakal Hindu Samaj, a coalition of several right-wing Hindu nationalist outfits. The petitioner cited reported instances of anti-Muslim rhetoric used by the supremacist right-wing group during a previous rally. The bench adjourned the hearing after recording an undertaking made by the State of Maharashtra that if permission is granted for the Sakal Hindu Samaj to hold its proposed meeting in Mumbai, it would be subject to the condition that no one would make any hate speech, act in defiance of law, or disturb the public order. Not only this, but the bench also directed the state police to, if the permission was granted and the occasion arose, to invoke Section 151 of the Code of Criminal Procedure, which allows the police to make preventive arrests. The bench also further accepted the demand of the petitioner that the meeting should be recorded on video, and issued an appropriate direction to that effect to the police inspector of the area. There are, under the Bombay Police Act and Criminal Procedure Code, statutory requirements for all such meetings to be videographed.
Despite these orders, a string of such meetings continued to be allowed all over Maharashtra.
Thereafter, in March, the same petitioner, Shaheen Abdullah filed a contempt petition based on newsreports which states that as many as 50 rallies spurring hate had taken place in Maharashtra over the previous four months. Citizens for Justice and Peece (cjp.org.in) has by then filed over three dozen complaints in all jurisdictional police stations on the issue, providing transcripts, alerting jurisdictional officers. Apart from seeking a response of the state government, the Supreme Court also repeated its concerns over failure of authorities to take prompt action against instances of hate speech.
Justice Joseph had then exclaimed in anguish, “State is impotent, state is powerless; it does not act in time. Why do we have a State at all if it is remaining silent?”
In an important development – having pan-India repercussions – the apex court thereafter extended its earlierorder with respect to the governments of Delhi, Uttar Pradesh, and Uttarakhand to the rest of the country in April. The bench directed all states and union territories to take suo motu action against hate speeches and register FIRs without waiting for any formal complaint.
On April 28, 2023 Justices KM Joseph and BV Nagarathna directed:
“Respondents shall ensure that immediately, as and when any speech or any action takes place which attracts offences such as Section 153A, 153B, 295A and 506 of IPC etc, without any complaint being filed suo motu action be taken to register cases and proceed against the offenders in accordance with law. Respondents will issue directions to the subordinates so that appropriate action can be taken at the earliest. We further make it clear that such action be taken irrespective of the religion of the maker of the speech, so that the secular character of Bharat as envisaged by the Preamble is preserved.”
Hearings on May 17, 2023
The bench further adjourned the hate speech matter (Shaheen Abdulla case) in which the People’s Union for Civil Liberties has also intervened, to August 2023. Advocate Nizam Pasha appeared on behalf of a petitioner who has filed a contempt petition against the state of Maharashtra for allegedly failing to act against instances of hate speech. He told a bench comprising Justices KM Joseph and Aravind Kumar that in the counter-affidavit submitted by the government, no copies of first information reports (FIR) had been supplied despite being enumerated in the document. “To our knowledge, some of the dates are incorrect. According to our information, the FIRs are for some other date and some other incidents.”
This led to an aggressive altercation with Solicitor General, Tushar Mehta who has made it a point to make offensive remarks against any persons intervening in a public interest issue. Despite his aggression, the bench pronounced, “Copies of the FIR mentioned in the counter-affidavit to be made available to the petitioner.” “I have only one submission, which I will make when the matter is heard. This is not a court of a magistrate. There is a law in place. If there is any violation, there is a system in place,” Solicitor-General Mehta said.
Apart from this, advocate Sanjay Parikh, appearing for the People’s Union for Civil Liberties (PUCL), pointed out that the organisation has made suggestions for directions on how to proceed in the matter. The counsel also told the bench that not only were instances of hate speech continuing, but pursuant to FIRs lodged by the police, no action had also been taken.
Suggestions made to the Court:
a) The jurisdictional police station should l ensure compliance with the orders dated January 13, 2023, February 3, 2023 and April 28, 2023, passed by the SC for all future rallies/ public meetings, and ensure prevention of hate speech.
b) When the rally is being conducted by individuals/ organizations with a history of making communal hate speeches, the SHO (Station House Officer) of the concerned Police Station will have the right to refuse permission for such a rally/ public meeting.
c) After conducting an enquiry if the Police is of the view that a rally/ public meeting can be conducted, it will take an undertaking from the convener of the rally/ public meeting that no hate speech will be made in the rally/ public meeting, apprising them of the orders passed by the Supreme Court
d) In case any hate speech is made in the rally, the police will have the authority to immediately stop the conduct of the rally and take action in accordance with law.
e) In case the police are not able to stop the hate speech for certain reasons/ due to law and order situation, the police shall, immediately (within 24 hours) suo motu register an FIR and take action against the persons who have made hate speeches. In the event the police does not lodge such a suo moto FIR, they will act in accordance with any complaint regarding such a rally and lodge an FIR if communal speech is said to have been made.
f) While conducting an inquiry, before granting any permission, the police will also look into the complaints by civil society organizations if any, regarding past instances of hate speech by the organizers or speakers of the rally/ meeting.
g) In addition to lodging of FIR, the SHO will intimate the Commissioner of police the instance of the hate speech without any delay. The Commissioner will thereafter monitor further actions pursuant to the registration of FIR, and ensure that steps are taken, i.e. FIR is lodged and appropriate action is taken, if not already taken.
h) A monthly report supported by an affidavit of an officer of the rank of[1]Superintendent of Police will be filed before the Supreme Court on the status of compliance with the orders – FIRs lodged, investigation carried out and arrests, if any made, which should be made publicly available
i) That wherever there is any apprehension of hate-speech in a rally or a public meeting, or the organisation conducting the rally/ public meeting has engaged in hate speech in the past, videography of the said rally/ meeting shall be done by the officers of the jurisdictional police station and the records of the same shall be maintained.
j) That names and details of organisations and individuals with known instances of indulging in hate speech and spreading communal propaganda through their speeches should be relayed to the Director General of Police, heads of police at the district level and all police stations at the local level, to ensure preventive steps can be taken.
k) That to ensure prosecution of those guilty of such offences, the Union Government and State Government be directed to not refuse sanction in cases of hate speech until and unless detailed and cogent reasons are recorded for refusing such sanction.
l) Under Section 107 of the Cr.P.C., the Executive Magistrate has the authority to initiate proceedings against a person who is likely to commit breach of peace or disturb public tranquillity by asking such concerned person to execute bonds for safeguarding peace and public tranquillity.
m) Similarly, Section 110 of the Cr.P.C. empowers the police, with the sanction of the Executive Magistrate to initiate preventive action against habitual offenders who have committed or are likely to commit certain offences involving a breach of peace, by requiring them to execute a bond of good behaviour.
n) Such provisions can be utilised by the concerned authorities to ensure that habitual offenders do not cause any further hindrance to public tranquillity and peace by indulging in hate speech in the State.
o) In view of the fact that there have been many instances where the law and order machinery is not taking action despite clear directions from the Supreme Court, it has also been suggested that there is a need for continued monitoring of the situation by this Hon’ble Court. The applicant is praying that a direction must be issued to the concerned state Police must file monthly compliance/status report indicating the action taken by them post any rally where the speakers have resorted to communally inciting hate speech.
Detailed Background
Last year in October, a bench headed by Justice KM Joseph had directed the Governments of NCT of Delhi, Uttarakhand and Uttar Pradesh to take suo motu action against any hate speech crime, without waiting for any complaint. Failure to take action against incidents of hate speech – irrespective of the religion of the maker of such speech – would be contempt of court, the bench warned. While issuing a set of interim directions to curb hate speech, the Supreme Court had stated, “There cannot be fraternity unless different religious communities are available to live in harmony.”
Subsequently, several incidents of hate speech were brought to the notice of the top court. In February this year, the petitioner, Shaheen Abdullah has approached the Supreme Court seeking a complete ban on an impending meeting of the Sakal Hindu Samaj, a coalition of several right-wing Hindu nationalist outfits. The petitioner had cited alleged instances of anti-Muslim rhetoric used by the right-wing group during a previous rally.
At that stage, the bench adjourned the hearing after recording an undertaking made by the State of Maharashtra that if permission is granted for the Sakal Hindu Samaj to hold its proposed meeting in Mumbai, it would be subject to the condition that no one would make any hate speech, act in defiance of law, or disturb the public order. In addition, the bench had also directed the state police to, if the permission was granted and the occasion arose, to invoke Section 151 of the Code of Criminal Procedure, which allows the police to make preventive arrests. The bench further accepted the demand of the petitioner that the meeting should be recorded on video, and issued an appropriate direction to that effect to the police inspector of the area. This is already a statutory requirement under law.
In March, when a spate of meetings continued despite the ongoing hearings in the Supreme Court, a contempt petition was filed based on a news article which stated that as many as 50 rallies spurring hate had taken place in Maharashtra over the previous four months. Seeking a response from the union and state governments, the Supreme Court had sharply expressed its concerns over failure of authorities to take prompt action against instances of hate speech. Justice Joseph exclaimed in anguish, “State is impotent, state is powerless; it does not act in time. Why do we have a State at all if it is remaining silent?”
At this stage, in a significant development – having pan-India repercussions – the apex court directed and extended its earlier orders applicable to the governments of Delhi, Uttar Pradesh, and Uttarakhand to the rest of the country in April. The bench directed all states and union territories to take suo motu action against hate speeches and register FIRs without waiting for any formal complaint.
The bench of Justices KM Joseph and BV Nagarathna has clearly stated
“Respondents shall ensure that immediately, as and when any speech or any action takes place which attracts offences such as Section 153A, 153B, 295A and 506 of IPC etc, without any complaint being filed suo motu action be taken to register cases and proceed against the offenders in accordance with law. Respondents will issue directions to the subordinates so that appropriate action can be taken at the earliest. We further make it clear that such action be taken irrespective of the religion of the maker of the speech, so that the secular character of Bharat as envisaged by the Preamble is preserved.”
Case Titles
Writ Petition (C) No. 940/2022 Shaheen Abdulla Versus Rajnish Seth
Kazeem Ahmad Sherwani v. State of Uttar Pradesh | Writ Petition (Criminal) No. 391 of 2021
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