[Jantar Mantar & Similar Incidents] Plea In Supreme Court Seeks Prevention Of Pre-Announced Hate Speeches By Conferring Duty On Public Authorities

The petition has been filed by Dr. Syeda Hameed, a former member of the Planning Commission of India and Prof. Alok Rai, former faculty member of Delhi University and IIT, Delhi.

They have urged the Court to recognize that public authorities have a "duty of care" to prevent hate speeches and define the contours of liability when they wilfully let such speeches be made in contravention of constitutional and statutory laws.

Videos of mob at the gathering at Jantar Mantar and shouting slogans openly calling for the killing of Muslims had emerged last week, following which a series of arrests were made by the Delhi Police.

The instant plea avers that the Police authorities did not take any preventive action, which itself is in defiance of the guidelines set out by the Supreme Court in Tehseen Poonawalla v. Union of India.

In that case, the Top Court had observed that it is the duty of the State to ensure that the machinery of law and order functions efficiently and effectively in maintaining peace so as to preserve secular ethos and pluralistic social fabric in a democratic set-up governed by rule of law.

"Earnest action and concrete steps have to be taken to protect the citizens from the recurrent pattern of violence which cannot be allowed to become "the new normal"," the Top had observed.

The plea highlights that failure of authorities in preventing hate speech has a spiraling effect inasmuch as it leads to motivated acts of violence. For instance, it alleges that four days after the rally of 8 August 2021, there was an incident of 'hate crime' in Kanpur, UP on 12 August 2021 where a Muslim e-rickshaw driver was publicly attacked by a group of men.

In this backdrop it points out that the Indian Supreme Court in the case of Shreya Singhal v. Union of India has reiterated that speeches which are akin to a 'spark in a powder keg' are not permissible.

"Some perpetrators were briefly arrested and later released on bail. It is submitted that looking at this incident only from the lens of criminality does not capture the enormity of trauma and discrimination. It would qualify probably as 'causing simple hurt', but the indignity and humiliation caused only on account of one's identity is not captured."

The Petitioner has cited the case of Amish Devgan v. Union of India which links hate speech to violation of unity and fraternity, and ultimately to breach of human dignity, which is an essential component of Article 21. The judgment takes it further and makes a distinction between 'hate speech' and other offensive and even hateful speech, the petition avers. It states,

"The distinction rests on the vulnerability of the targeted group to direct or structural violence. Offensive speech against the government for instance does not make it vulnerable to discrimination. On the other hand hateful speech consistently and continuously targeting a minority/ marginalized group might make them vulnerable to both structural and direct violence. Such speech qualifies as hate speech and even when not 'acting as spark in a powder keg' causes constitutional harm as per Amish Devgan," the Petitioner contends.

It is also highlighted that Public authorities frequently mix up dissenting speech with hate speech and clamp down on the former. The plea states,

"Hate speech is not the same as anti-majoritarian speech or dissenting speech...hate speech feeds into a system of political/social discrimination and has a cumulative effect on the dignity of a group/community and its members."

The petition is filed through Advocate Sumita Hazarika.

The petition has been drawn by Advocates Shahrukh Alam, Warisha Farasat and Rashmi Singh

Case Title: Dr. Syeda Hameed & Ors Vs Union of India