Don’t You Think That To Maintain Communal Harmony, Abjuring Hate Speech Is Necessary? Supreme Court Asks Solicitor General

The Supreme Court, on Tuesday, adjourned the hearing of contempt petition in a batch of pleas seeking directions to regulate hate speech, till tomorrow (29.03.2023).

A Bench comprising Justice KM Joseph and Justice BV Nagarathna was considering a batch of petitions in respect of various instances of alleged hate speeches across the country.

Advocate, Mr. Nizam Pasha apprised the Bench that in its earlier order, the Apex Court had directed that the Governments should take suo motu action against any hate speech crime, without waiting for any complaint. It had noted that cases should be suo motu registered and the offenders should be proceeded against in accordance with law and action should be taken regardless of the religion of the speaker. It had warned that any hesitation to act as per the directions would be viewed as contempt of court. Mr. Pasha submitted that in view of the said order, a contempt petition has been filed based on a news article published in the the Indian Express, which mentioned that 50 rallies spurring hate has taken place in Maharashtra in the last 4 months. He added, “One hate speech conclave every two days. This is only in Maharashtra.” 

It may be recalled that the Supreme Court had earlier passed directions to the Maharashtra authorities in respect of the rallies organised by Sakal Hindu Samaj.

The Solicitor General of India, Mr. Tushar Mehta took objection to the petition being filed on the basis of news reports. He submitted, “On news reports? Are we converting this court into magistrates’ court?”

Noting that the statistics put forth by Mr. Pasha only deals with Maharashtra, the Solicitor General said, “..this person (petitioner) from Kerala is fully aware of Maharashtra. There is complete peace in the rest of the country?…his public interest is confined to Maharashtra.”

He submitted that to report hate crimes, the petitioner can approach the Magistrates' court seeking recourse under the CrPC. Instead, petitioner has filed contempt petition before the Apex Court, that too, based on news articles, the SG said.

Justice Joseph remarked that when the Court had passed the order, it was aware of the prevailing conditions in the country. He added -

“If there is an order of this court, we passed it on a certain understanding of what is happening in the country. We understand what is happening, the fact that we are keeping silent should not be misunderstood.”

The Judge noted that previously the Solicitor General had gracefully conceded that the present matter is one that goes to the heart of India’s democracy. He asked the Solicitor General, “Don’t you think as the Solicitor General of this country that for maintenance of communal harmony abjuring hate speech is fundamental requisite?”

The Solicitor General responded in the affirmative. Thereafter the Judge stated, “In fact you should say that you will take action.” Mr. Mehta informed him that action has been taken by the concerned authorities. Justice Joseph enquired, “how many FIRs lodged”. Mr. Mehta submitted that 18 FIRs have been lodged till date. As a follow up to the first query, the Judge asked the Solicitor General what action has been taken by the authorities pursuant to the lodging of the FIRs. The Solicitor General responded that if the Court was willing to monitor the investigation, then he would file a report to better assist the Court.

During the course of the hearing, the Solicitor General emphasised on the hate speech rallies in Kerala. He suggested that the Court may ask the petitioner, who is from Kerala, to bring those instances of hate speeches to its notice. He alleged that the petition was being selective in only pointing out the hate speeches in Maharashtra. The Solicitor General told Mr. Pasha that he cannot argue solely on the basis of news reports.

Justice Joseph asked Mr. Pasha, “How many rallies?”

Mr. Pasha responded indicating recurrence in the name of the perpetrators, “50 as per news reports. We have attached transcripts of 16 rallies…Your lordships will notice that the same names recur.”

Suggesting that the petitioner was being selective in their approach, the Solicitor General proposed, “If we are really serious about hate speech then please direct the public spirited petitioner to collect all hate speeches across religion and place it before your lordships with prayer for similar action. He can’t be selective.”

Justice Nagarathna expressed concern that if petitioners approach the Apex Court directly with such applications reporting specific instances, then the Court would be flooded. She opined that the procedure that can be adopted ought to be considered at the threshold.

“You are starting from Apex Court rather than going to the first available forum. Whether the Apex Court should be flooded with this type of application has to be looked into. We are not on substantive law, we are saying on procedure…How to deal with it we will have to look at that aspect first. “

Mr. Pasha submitted, “Once it ensures that State machinery is goaded into action, then we can take our grievances to the jurisdictional courts.”

The Solicitor General implored the Bench to ask the petitioner to collect hate speech across religion and pray for the same relief. He added that if the petitioner does not do so, then it would raise questions regarding their bonafides.

The bench will consider the matter tomorrow.

[Case Status: Ashwini Kumar Upadhyay v. UoI And Ors. WP(C) No. 943/2021]