Supreme Court Discharges State Of Uttarakhand & Its DGP From Contempt Plea Filed By Tushar Gandhi Alleging Inaction In Dharma Sansad Hate Speech Cases

"The Tehseen Poonawalla petition is before Justice Ajay Rastogi and which inter alia relates to the incident which took place in Uttarakhand resulting in registration of several FIRs. The petitioner does not seek to press any reliefs in the main petition against the State of Uttarakhand. The State of Uttarakhand and DGP Uttarakhand stand discharged from the purview of these proceedings and the proceedings shall remain confined to the action or inaction of Delhi Police", the Court noted in the order.

On the last date of hearing, the Apex Court had directed the Uttarakhand Government and the Government of NCT of Delhi to file affidavits explaining the factual position and the action taken by them. It had recorded in the order -

"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."

On Friday, at the outset Mr. Farasat apprised the Bench comprising CJI, Justice D.Y. Chandrachud and Justice Hima Kohli, that the State of Uttarakhand has filed a reply, but Delhi Police has not.

The Counsel appearing for the Delhi Police assured the Bench that the counter affidavit was ready, but could not be filed as the Solicitor General of India, as well as, the Attorney General for India were not in the country. The Bench granted the Union Government two weeks' time to file the response.

Dy. Advocate General for Uttarakhand Mr. Jatinder Kumar Sethi apprised the Bench that at least six batches of petitions pertaining to the same incident of hate speech are pending before four benches of the Apex Court. He provided a chart with the said information to the Bench to substantiate his claim.

In order to verify if all the petitions pertained to the same incident, the CJI asked, "All are against the same incident?"

The Dy Advocate General responded in the affirmative. He added that in the batch of petitions before the Bench led by Justice K.M. Joseph, the State of Uttarakhand has filed a detailed affidavit, pursuant to which the Counsel for the petitioner in that particular batch stated that they would not proceed against the State of Uttarakhand. He further informed that the Bench led by Justice Joseph was also satisfied with the State's affidavit. The Dy.Advocate General submitted that the contempt petitioners herein are intervenors in the said batch, and were aware of the same, yet they have moved the Apex Court in exercise of contempt jurisdiction against the State of Uttarakhand.

The CJI asked Mr. Farasat, "Why have you filed contempt?"

Mr. Farasat responded that 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, and hence the petitioner was constrained to file the contempt petition. He conceded that the batch of petition before Justice Joseph deals with the incident that took place in Uttarakhand.

Mr. Farasat also informed the Bench led by the CJI, that he does not seek to press the contempt petition against the State of Uttarakhand and its DGP. However, he pointed out that none of the hate speech matters before the other Benches dealt with the hate speech incident in Delhi.

Considering the submissions, the CJI asked Mr. Farasat to confine his contempt petition to the Delhi incident.

Dy. Advocate General for Uttarakhand requested the Bench, if all the matters pending before several Benches can be listed before a single Bench. To this, the CJI stated that the parties are at liberty to file an application seeking clubbing of the matters.

The substratum of the present contempt petition deals with hate speeches made in a three day conclave, 'Dharma Sansad' held in Haridwar from 17th to 19th December and an event in Delhi held on 19th December, 2021 by members of Hindu Yuva Vahini. 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'.

It is alleged that the concerned State Police have not abided by the guidelines issued in Tehseen Poonawalla judgment. He added that out of 9 people who made hate speech at the above-mentioned events, only 2 have been arrested and 7 have not been proceeded against.

The petition submits that immediately after the events took place the hate speeches were made publicly available, but still the Uttarakhand police took 4 days to register the FIR, that too against only one person, while there were atleast seven others who had called for genocide of a minority community at the Dharma Sansad in Haridwar. Only after persistent public protests and social media outcry, names of Annapurna Maa, Dharamdas, Sagar Sidhu Maharaj and Yati Narsinghanand Giri were added to the FIR. Another FIR was registered almost 2 weeks after the incident, on 02.01.2022, against Yati Narsinghanand Giri, Sindhu Sagar, Dharamdas, Parmananda, Sadhvi Annapurna, Anand Swaroop, Ashwini Upadhyay, Suresh Chahwan, Prabodhanand Giri and Jitendra Narayan Tyagibut that too 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. At the time of filing of the contempt petition, around 06.01.2022, the Delhi Police was yet to take cognisance of the hate speeches made unapologetically at the event organised by the Hindu Yuva Vahini.

[Case Title: Tushar Gandhi v. Ashok Kumar Contempt petition 41/2022 in WP 732 of 2017]