New Delhi: The Supreme Court Friday directed all states and Union territories to take cognizance of hate speech cases on their own without waiting for any formal complaint. It warned that any hesitation to act in accordance with these directions would be viewed as contempt of court.
The bench of justices K.M. Joseph and B.V. Nagarathna thus extended its 21 October, 2022 order that directed Delhi, Uttar Pradesh and Uttarakhand to act against hate speech on their own. On Friday, the court said specifically that action should be taken regardless of the religion of the accused, “so that the secular character of Bharat as envisaged by the Preamble is preserved.”
In its order, the bench said, “Respondents shall ensure that immediately, as and when any speech or any action takes place which attracts offences such as sections 153A, 153B, 295A and 506 of the IPC etc (all sections that deal with hate speech), 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.”
The court’s direction came in a case related to an application filed by advocate Nizam Pasha on behalf of multimedia journalist Shaheen Abdullah, seeking directions to curb hate speech. Pasha had suggested that the court appoint a nodal officer in each state who should be responsible for acting against hate speech.
The application is part of a contempt petition filed in the top court that accused the Maharashtra government of failing to take action against hate speeches made during rallies held in the state. After expressing anguish over the rise in hate speech cases, the bench had issued a slew of directions to the Maharashtra government to ensure that no hate speeches are made during a proposed rally by the Sakal Hindu Samaj in February. The state was asked to record the speeches on video.
Appearing for Maharashtra, additional solicitor general S.V. Raju submitted that the proposed rally that was to be recorded never took place. However, he added, the state had identified some cases and FIRs were registered in them. Cases have been registered with regard even to incidents the petitioner had not pointed out, the law officer told the court.
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Remedy in Tehseen Poonawalla judgment
Solicitor general Tushar Mehta, appearing for the Union government, placed before the bench the Supreme Court’s 2018 judgment in the Tehseen Poonawalla case, which provides a remedy for those with complaints about hate speech.
“No one, from the Centre or the states, justifies hate speech. And if hate speech takes place, what is to be done is there in the Tehseen Poonawalla judgment,” he told the bench.
Agreeing with the bench that hate speech “affects the fabric of the nation”, Mehta submitted that the procedure laid out by the Poonawalla judgment required a complainant to approach the police and invoke the law under the Criminal Procedure Code if the police refuse to act.
Mehta criticised the trend of petitions being filed directly in the top court over alleged instances of hate speech, saying that the apex court had been “reduced to a magistrate’s court”.
“In one petition, the court has issued notice. Now we are having application after application. Should this court be taking over the duty of the magistrate? There is a remedy. You cannot rush here. Now from all over the country applications are coming here,” the solicitor complained.
‘Where do we draw the line?’
When a lawyer for one of the petitioners claimed that hate speech was a pan-India issue, requiring the top court’s intervention, Justice Joseph remarked that he had hardly heard of cases of hate speech from the northeast.
“So, we don’t know if it is pan-India or if it is in some areas for special reasons. We only had the public good in mind and we passed the order of suo motu action against hate speech so that it should not go out of hand,” the judge said, maintaining that hate speech is “something which goes to the heart of our republic, about the dignity of people”.
Mehta, however, again raised the issue of applications flooding the top court, even as he shared the judge’s concerns about hate speech.
“Where do we draw the line,” he asked. “One petitioner filed a petition against one community and then another petition against another came. Should it be done by this court?”
A few counsels spoke of hate speeches in West Bengal and Bihar, prompting Justice Joseph to remark, “Both of us (judges) are apolitical. We don’t care about party A and B. We are only on the side of the Constitution.”
The judge urged the lawyers to refrain from bringing “politics in the present case,” saying the bench “won’t be a party to this”.
“We have said irrespective of religion, action should be taken. What more is needed,” he said.
(Edited by Rohan Manoj)
Also read: Justice Nagarathna’s dissent in ministers’ speech case: ‘Hate speech denies right to dignity’