Prompt Action Irrespective Of Religion Ensures No Hate Crimes, Justice KM Joseph Says On His Last Hearing Day Of Case

Background

In July 2021, 62-year-old Kazeem Ahmad, a resident of Delhi’s Zakir Nagar, was allegedly waylaid, assaulted, and looted by four persons in Noida. The elderly Muslim man has claimed that he was specifically targeted because of his religion and was a victim of a hate crime. He has also accused the Uttar Pradesh police of inaction, saying that despite visiting his house, police personnel refused to accept his written complaint.

Subsequently, Ahmad moved the Supreme Court, seeking action against the erring officers as well as compensation for victims of hate crime. Senior Advocate Huzefa Ahmadi pointed out before a bench of Justices KM Joseph and BV Nagarathna that the state government, while recording the crime as a ‘theft’, refused to register it as a hate crime. “There is hesitancy on the part of the state government to register these crimes. They want to bring down the number of these crimes so that the criminal record shows that there are no hate crimes,” the senior counsel told the bench.

However, senior advocate and UP additional advocate-general Garima Prashad vehemently objected to this claim, saying, “This itself is a media-driven allegation and case.” Upon investigation, she claimed, no evidence was found suggesting that religious slurs or manhandling was involved.

"How did the police come to the conclusion that this was a case of theft? Were there witnesses? Do you have the case diary?” the bench asked the law officer, who replied that the government had verified everything and filed a detailed counter-affidavit. She also emphasised that the entire investigation was carried out by the Delhi police and that allegedly there were contradictions in Ahmad’s statements. However, the opposing counsel exclaimed, “The attitude of the state is that the victim is a liar.” He also said that the police routinely discouraged people from filing such cases, especially if they belonged to minority communities.

“Both sides can't be true. We would like to know where the truth lies,” the bench said, as it directed the State to be ready with the case diary and other records for the perusal of the court. The bench also cautioned that ordinary people would become ‘innocent victims’ if cases involving hate speech were not taken seriously.

Earlier directions passed by Justice Joseph's bench in hate speech cases

Last year in October, a bench headed by Justice KM Joseph directed the Governments of NCT of Delhi, Uttarakhand and Uttar Pradesh to take suo motu action against any hate speech crime, without waiting for any complaint. Failure to take action against incidents of hate speech - irrespective of the religion of the maker of such speech – would be contempt of court, the bench warned. While issuing a set of interim directions to curb hate speech, the Supreme Court observed, “There cannot be fraternity unless different religious communities are available to live in harmony.”

Subsequently, several incidents of hate speech were brought to the notice of the top court. In February this year, one Shaheen Abdullah approached the court seeking a ban on an impending meeting of the Sakal Hindu Samaj, a coalition of several right-wing Hindu nationalist outfits. The petitioner cited alleged instances of anti-Muslim rhetoric used by the right-wing group during a previous rally. The bench adjourned the hearing after recording an undertaking made by the State of Maharashtra that if permission is granted for the Sakal Hindu Samaj to hold its proposed meeting in Mumbai, it would be subject to the condition that no one would make any hate speech, act in defiance of law, or disturb the public order. Not only this, but the bench also directed the state police to, if the permission was granted and the occasion arose, to invoke Section 151 of the Code of Criminal Procedure, which allows the police to make preventive arrests. The bench further accepted the demand of the petitioner that the meeting should be recorded on video, and issued an appropriate direction to that effect to the police inspector of the area.

In March, a contempt petition was filed based on a news article published in the Indian Express which stated that as many as 50 rallies spurring hate had taken place in Maharashtra over the previous four months. Besides seeking the response of the state government, the Supreme Court also repeated its concerns over failure of authorities to take prompt action against instances of hate speech. Justice Joseph exclaimed in anguish, “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?”

In an important development – having pan-India repercussions – the apex court extended its earlier order with respect to the governments of Delhi, Uttar Pradesh, and Uttarakhand to the rest of the country in April. The bench directed all states and union territories to take suo motu action against hate speeches and register FIRs without waiting for any formal complaint.

The bench of Justices KM Joseph and BV Nagarathna pronounced:

“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.”

Case Title

Kazeem Ahmad Sherwani v. State of Uttar Pradesh | Writ Petition (Criminal) No. 391 of 2021