BREAKING : Supreme Court Agrees To Hear PIL Seeking Action Against Haridwar Dharm Sansad Anti-Muslim Hate Speeches

The Petition drawn by Advocate, Ms. Rashmi Singh and filed by, Advocate, Ms. Sumita Hazarika, seeks 'independent, credible and impartial investigation' into the incidents of hate speeches against the Muslim community by a SIT. It has been further prayed for the Apex Court to issue directions to the police authorities to comply with the guidelines laid down by it in Tehseen Poonawalla v. Union of India (2018) 9 SCC 501 and to consequently define the contours of 'duty of care in investigation' to be undertaken by the police authorities.

The Petition has been filed against the Ministry of Home Affairs, Commissioner of Police, Delhi and the Direction General of Police, Uttarakhand.

Background

Between 17th and 19th December, 2021 at two separate events organised in Delhi and Haridwar, hate speeches were made by a group of people calling for genocide of members of the Muslim community. The Petitioners have identified the perpetrators as -

1. Yati Narsinghanand Giri
2. Sagar Sindhu Maharaj
3. Dharamdas Maharaj
4. Premanand Maharaj
5. Sadhvi Annapoorna alias Pooja Shakun Pandey
6. Swami Anand Swaroop
7. Ashwani Upadhyay
8. Suresh Chavhanke
9. Swami Prabodhanand Giri

The Uttarakhand Police had filed an FIR on 23.12.20221 under Section 153A and 295A of the IPC against 5 people, namely, Wasim Rizvi, Sant Dharamdas Maharaj, Sadhvi Annapoorna alias Pooja Shakun Pandey, Yati Narsinghanand and Sagar Sindhu Maharaj. With respect to the hate speech given by Suresh Chavhanke, CMD of Sudarshan News and others at the event organised in Delhi, a complaint was filed with the Commissioner of Police, Delhi on 27.12.2021. Subsequently, a video went viral wherein one of the speakers at the Haridwar event flaunted a police officer's allegiance to the organisers. On a video dated 31.12.2021, the organisers had announced their future plans to hold similar events in Aligarh and Kurukshetra in January, 2022. They also circulated the concerned videos of the hate speeches as 'promotional videos'. On 03.01.2022, the Uttarakhand Police lodged an FIR under Section 153A and 298 of the IPC against Wasim Rizvi, Yati Narsinghanand, Sant Dharamdas Maharaj, Sadhvi Annapoorna alias Pooja Shakun Pandey, Sagar Sindhu Maharaj, Swami Anand Swaroop, Ashwani Upadhyay, Swami Prabodhanand Giri, Dharamdas Maharaj, Premanand Maharaj amongst others.

Grounds For Challenge:

Inadequate and delayed action by Police Authorities

The Petitioners have averred that no effective steps have been taken by the police. The FIRs lodged by the Uttarakhand Police have conveniently excluded offences punishable under Section 120B, 121A and 153B of the Indian Penal Code. Till date no FIR has been lodged by the Delhi Police despite calls for ethnic cleansing at the event organised in Delhi. The Petitioners have further alleged that the inaction on the part of the police only fosters the belief that the authorities are hand in glove with the perpetrators.

Reach, mass appeal and dangerous consequences

It has been argued that the vile speeches would pass the 'spark in a powder keg' test as the Supreme Court had held in Ragarajan v. P. Jagjeevan Ram and Ors. (1989) 2 SCC 574 -

"...The anticipated danger should not be remote, conjectural or far fetched. It should have proximate and direct nexus with the expression. The expression of thought should be intrinsically dangerous to the public interest. In other words, the expression should be inseparably locked up with the action contemplated like the equivalent of a "spark in a powder keg"."

It has been further highlighted by the Petitioners that such detestable content being widely available on the internet would have fatal consequences.

Open call for genocide in violation of International Convention

The Petitioners have argued that the concerned speeches emphasising on the ethnic cleansing of Muslims is in violation of the Convention on Prevention and Punishment of the Crime of Genocide to which Indian is a signatory. Article I of the Convention reads as under -

"The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish."

Breach of Duty of Care by police and administrative authorities

The Petitioners have pointed out that the police authorities confuse 'hate speech' with unpopular or dissenting speech in violation of the ratio in Amish Devgan v. Union of India, 2020 SCC OnLine SC 994, Pravasi Bhalai Sangathan v. Union of India (2014) 11 SCC 477 and also the Law Commission's 267th Report. They have further emphasised that the guidelines laid down by the Apex Court in Tehseen Poonawalla (supra) are also not followed by the State functionaries -

"42. We may emphatically note that it is axiomatic 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 our quintessentially secular ethos and pluralistic social fabric in a democratic set-up governed by rule of law. In times of chaos and anarchy, the State has to act positively and responsibly to safeguard and secure the constitutional promises to its citizens. The horrendous acts of mobocracy cannot be permitted to inundate the law of the land. 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"."

Breach of Constitutional 'Duty of Care' by police

The Petitioners specifically culled out the guidelines set out in Tehseen Poonawalla (supra) to be followed by the police authorities, which include -

• The appointment of a designated nodal officer, not below the rank of Superintendent of Police for taking measures to prevent prejudice-motivated crimes like mob violence and lynching.
• If an incident of lynching or mob violence comes to the notice of the local police, the jurisdictional police station shall immediately lodge and FIR, without any undue delay, under the relevant provisions of law.
• It shall be the duty of the Station House Officer, in whose police station such FIR is registered, to forthwith intimate the Nodal Officer in the district who shall, in turn, ensure that there is no further harassment of the family members of the victim(s).
• Investigation in such offences shall be personally monitored by the Nodal Officer who shall be duty bound to ensure that the investigation is carried out effectively and the charge- sheet in such cases is filed within the statutory period from the date of registration of the FIR or arrest of the accused, as the case may be.
• There should be a scheme to compensate victims of such prejudice-motivated violence.
• Wherever it is found that a police officer or an officer of the district administration has failed to comply with the aforesaid directions in order to prevent and/or investigate and/or facilitate expeditious trial of any crime of mob violence and lynching, the same shall be considered as an act of deliberate negligence and/or misconduct for which appropriate action must be taken against him/her and not limited to departmental action under the service rules. The departmental action shall be taken to its logical conclusion preferably within six months by the authority of the first instance. [Emphasis Supplied]. It is submitted that this 'punitive guideline no. i)' crystalizes the 'duty of care', as it has also evolved in other jurisdictions.
• In terms of the ruling of this Court in Arumugam Servai v. State of Tamil Nadu [(2011) 6 SCC 405], the States are directed to take disciplinary action against the concerned officials if it is found that (i) such official(s) did not prevent the incident, despite having prior knowledge of it, or (ii) where the incident has already occurred, such official(s) did not promptly apprehend and institute criminal proceedings against the culprits.

Breach of General and Statutory 'duty of care'

The Petitioners have averred that the police have a constitutional 'duty of care' in conducting a fair investigation, recognised under Articles 14 and 21 of the Constitution as held by the Apex Court in Pooja Pal v. Union of India (2016) 3 SCC 135. Further, they have argued that the FIR lodged by the Uttarakhand police is against 'unknown persons' even when their pictures are widely available on social media. The action, or rather, the inaction of the police has been alleged to be arbitrary and violative of Article 14. Placing reliance on Karan Singh v. State of Haryana (2013) 12 SCC 529 and Manu Sharma v. State (NCT of Delhi) (2010) 6 SCC 1, the Petitioners have argued that investigating officers ought not to indulge in mischief; should be impartial, unbiased; must not dispel any suspicion regarding genuineness of the investigation.

Protection from 'hate speech' is a constitutional and statutory right

Citing Pravasi Bhalai Sangathan v. Union of India (2014) 11 SCC 477, the Petitioners have submitted that the Apex Court has recognised 'hate speech' as a violation of Articles 14, 15 and 21of the Constitution. The Petitioners have referred to the Law Commission Report to argue that hate speech is not merely offensive speech, anti-majoritarian speech or dissenting speech, it is an injury which amounts to more than hurting sentiments but less than physical injury which demands restriction in a democratic setup. The Report had indeed acknowledged that hate speech is essentially an offence against marginalised groups -

"Where speech injures dignity, it will do more harm than simply offend its target. It would undermine the "implicit assurance" that citizens of a democracy, particularly minorities or vulnerable groups are placed on the same footing as the majority."

The Petitioners argued that as held by the Supreme Court in Amish Devgan (supra), hate speech violates unity, fraternity, and human dignity. Further, they have submitted that hate speech is in derogation of the principles enumerated in Article 7 of the Universal Declaration of Human Rights and 20(2) of the International Covenant on Civil and Political Rights. Article 20(2) specifically condemns hate speech as under -

"Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law."