Secular State Has To Prevent Hate Speech At Any Cost : Supreme Court

The Bench was considering an urgent application seeking to prohibit the proposed event in view of alleged anti-Muslim hate speeches uttered during a previous event organised by the same group last Sunday.

After Senior Advocate Kapil Sibal, appearing for the applicants made an array of submissions,  Bench of Justices KM Joseph and JB Pardiwala observed that as far as the holding of the meeting is concerned, there are two things- to prevent the holding of the meeting or if something happens at that meeting which falls foul of the law, to take action.

“If there’s a likelihood of the same thing happening, your Lordships can prevent that”, Sibal argued.

Solicitor General of India Tushar Mehta, appearing for the State of Maharashtra, told the bench that the State has not received any request for permission for conducting the meeting so far.

“Suppose you make an inflammatory speech; the members of this particular community may not be in a position to respond or fight back…..The whole idea is to prevent. It's a secular state! If you do it for once, you will see that all of this will stop", Justice Joseph said.

“I (State) am capable of doing it. The moment the secular state does it, then your Lordships will be flooded with petitions that our Freedom of Expression is curtailed and we have a right to express ourselves…”, replied Mehta.

Mehta, clarifying that he is not defending what is alleged to have been said during the previous meeting, argued that to put a prior restraint on the meeting will be violation of the rights under Article 19 of the Constitution to form associations, hold meetings and express views.

“Without getting a permission, can they hold a meeting?”,Justice Joseph asked.

“No, they cannot”, SG Replied

“Then why are you saying that they are going to get a permission, anticipating…?”, Justice Joseph asked.

The law officer then said that a restriction by a judicial order will amount to a pre-speech censorship. He also took exception to a person from Kerala objecting to something which is going to happen in Maharashtra. "The petitioner is from Kerala, she would not even know", Mehta said.

“Any person can come to this Court”, Justice Joseph stated..

“The sex nor the place of residence is not an issue”, Sibal said while adding that the applicant is a man from Kerala.

If there’s any law-and-order situation, action will have to be taken and will be taken, SG assured.

“Now, we may be a bit reluctant to grant such a relief that you don’t hold this procession. So, it should be ensured that during this rally or event, there shouldn't be any rash statements being made or something like that. For that, the authority concerned may take steps in that regard. One more thing, if no permission has been obtained, there’s no question of …this event. If permission is sought, authority might have looked into something and then grant/decline the permission”, Justice Pardiwala said.

To say to get the speech vetted by us before the rally will not be possible, SG Mehta said.

Justice Joseph then said that State will have intelligence reports about the previous conduct of the organizers and their intent can be gathered. SG agreed that the statements cited are "distasteful", but reiterated his objections to prior restraint (Sibal interjected to say that the statements can't be trivialised as distasteful as they are highly offensive).

Nevertheless, the SG undertook that if permission is granted, it would be subject to the condition that nobody would make hate speeches or act in defiance of law or disturb communal harmony. This undertaking made on behalf of the State was eventually recorded by the Court in its order.

“Look at what is being said (in the earlier rally). What action have you taken?”, Justice Joseph asked.

“Last Sunday also, under this organisation, an MLA made hate speeches. Next Sunday also, there was a meeting”, Sibal pointed out. He placed reliance on Section 151 CrPC which empowers police to arrest someone to prevent the commission of cognizable offence.

Opposing this, SG  said that the petitioners are seeking “not only pre-speech censorship but also pre-speech arrest”.

Sibal urged that permission for the upcoming meeting should be granted only after looking into the contents of speeches made in the previous meeting by the same organisation. Further, the officers in charge should capture this in a video.

During the hearing, the SG stoutly opposed the petition by saying that the petitioner was "selectively" taking up causes though he is claiming to be a "public spirited citizen". 

"Now selective cases are being filed here. Can this august forum be abused like this?", SG asked. "Now individuals are selectively choosing and coming to this court, saying ban this event in Uttarakhand, ban that event in Madhya Pradesh, Maharashtra. Can this Court be converted into an authority which grants permissions for meetings?", he asked.

SG said that the Court will be "pre-judging" that hate speech will take place, if directions to invoke Section 151 CrPC are passed. Regarding the direction that police should record video of the event, the SG did not oppose, but said "ideally the public spirited people should record, who come selectively and abuse this Court's jurisdiction".

"Do you think petitioners will be permitted to do videography?", Justice Joseph asked in response.

“We have to prevent it, at all costs”, before proceeding to pass order in the matter.

The Bench also observed that there have been a “series” of such rallies.

“I am not aware”, SG Mehta said.

Case Title: Shaheen Abdullah versus Union of India W.P.(C) No. 940/2022