Supreme Court Directs All States/UTs To Register Suo Motu FIR Against Hate Speeches Irrespective Of Religion

In a significant development, the Supreme Court on Friday extended the application of its October 2022 order (which directed the Delhi, Uttar Pradesh and Uttarakhand Police to take suo motu action against hate speech cases) to all States and Union Territories. So now, all States/UTs are enjoined to take suo motu action to register FIR against hate speeches, without waiting for any formal complaint.

The initial order passed on October 21, 2022 was only applicable to the Governments of NCT of Delhi, Uttarakhand, Uttar Pradesh.

The action should be taken regardless of the religion of the speaker. Any hesitation to act as per the directions would be viewed as contempt of court, the Court warned.

A bench comprising Justices KM Joseph and BV Nagarathna was considering a batch of petitions which sought action with respect to various instances of hate crimes across the country.The Bench recorded in the order - 

"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."

The order was passed in an application filed by Advocate Nizam Pasha(for petitioner Shaheen Abdullah) seeking directions to curb hate speeches. In his application for direction, Mr. Pasha has suggested that nodal officer be appointed in each state who should be responsible for actions on hate speeches. Senior Advocate, Mr. Sanjay Parikh appearing for PUCL submitted that the organisation would like to file an applications to supplement Mr. Pasha's suggestions. 

On March 29, the Court had sought the response of the State of Maharashtra in a contempt petition which alleged that the State authorities failed to take action against hate speeches made during rallies. 

On the previous hearing date, expressing a sense of anguish at the rise in hate speech cases, the bench had commented with despair, "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?”. The bench also repeatedly highlighted the importance of maintaining communal harmony and brotherhood.

In February, the bench had passed a slew of directions to the Maharashtra authorities with respect to the rallies held by Sakal Hindu Samaj, including orders to videorecord the speeches.

Today's proceedings

On Friday, Justice Joseph told the ASG, Mr. SV Raju appearing for Maharashtra, "You (State of Maharashtra) should not take our orders lightly”. The ASG responded, "We have highest regard for this court."

With respect to the contempt petition, Justice Joseph enquired if the counter affidavit has been filed by the State of Maharashtra. The Additional Solicitor General, Mr. SV Raju submitted that is had been file yesterday. Justice Jospeh noted that the same should have been filed earlier so that the Judges have sufficient time to peruse the same. 

Summarising the relevant content in the counter affidavit, the ASG submitted, "We have identified some cases and FIR registered..videography was limited to rally proposed on Feb 5th, that rally did not take place."

He added,"Even in cases which the petitioners have not pointed out, we have registered FIR."

Justice Joseph reckoned, “That is your duty."

Mr. Parikh alleged inaction on part of the State. He submitted, "After 5th Feb, several rallies took place. And there are some individuals who are repeatedly making statements, but no action taken."

During the course of the hearing, Justice Joseph clarified, "We did not direct that action should be taken against Hindu community or Muslim community. What we said was irrespective of the religion, action should be taken."

Solicitor General of India Mr. Tushar Mehta argued that the remedy was already available as per the CrPC and the order of the Apex Court in the Tehseen Poonawalla judgment. He submitted, “No one, from Central Govt or State Govts, justify hate speeches. If hate speeches take place, what is to be done is given in Tehseen Poonawalla judgment.” He added, "It is a serious offence, no doubt. Whenever hate speech take place, remedy is to approach the concerned police station. If police refuse, invoke 156(3) to approach Magistrate."

Justice Joseph opined, "It is an offence affecting the fabric of the nation."

Agreeing that it is a serious offence, the Solicitor General submitted that every instance of hate speech is now being challenged before the Apex Court by way of filing an application in the main petition. As result, he submitted, the Apex Court has been reduced to a Magistrate Court. He argued, "In one petition court has issued notice. Now we are receiving applications after applications. Should this court be taking over the duty of the Magistrate? There is a remedy. You can't rush here. Now from all over country, applications are coming here."

Mr. Parikh apprised the Bench, "In some states, for example, Maharashtra, nobody is taking action. I don't want to name the person. Despite Supreme Court's order, no action is being taken. The statements are shocking. There are MPs and MLAs sitting in those meetings."

The Solicitor General requested the Bench to first decide, “whether this court should take action."

One of the Counsels for the petitioner submitted, "This is a pan-India issue”. In response, Justice Joseph reckoned, "When you say it is a pan-India issue, you take the case of north-east. I don't know if there are instances of hate speeches there, not that I know. So we don't know if it is pan-India or it is in some areas for special reasons. We only had public good in mind when we passed the order for suo motu action against hate speech. That it should not go out of hands.."

The Solicitor General stated that the Government shares the same concern. However, he brought to the notice of the court, "Govt also shares the concerns. But we have now hundreds of applications, where do we draw the line."

Justice Joseph said, "This is something which goes to the heart of our republic...about dignity of people...."

The Solicitor General submitted, "Agree, but now one petitioner files a petition against one community, and then another petition against another comes..should it be done by this court?"

One of the Counsel pointed out instances of hate speeches in West Bengal. Another Counsel mentioned a petition filed in respect to hate speeches in Bihar. 

Justice Joseph then said, "We want to say something. Both of us are apolitical. We don't care about party A or party B. We are only on Constitution.” He asked all the Counsel present to refrain from bringing political aspects into the present proceedings, "Don't bring in politics. If attempt is to bring in politics, we won't be a party to this...we have said, irrespective of religion, action should be taken. What more is needed?"

The Bench also allowed the intervention application filed by Advocate Vishnu Shankar Jain highlighting instances of call for beheading of a specific community across the country. 

The matter is to be next listed on 12th May, 2023.

Case Title : Ashwini Kumar Upadhyay vs Union of India (WP(c) No. 943/2021) and connected matters

Citation.   : 2023 LiveLaw (SC) 405

Hate Speech - Supreme Court directs all States/UTs to register suo motu FIRs in offences such as Section 153A, 153B, 295A and 505 of IPC etc, without any complaint being filed-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.

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