New Delhi: Delhi Deputy Chief Minister Parvesh Verma and Bharatiya Janata Party (BJP) leader Anurag Thakur got a clean chit from the Supreme Court from allegations of delivering hate speeches against those protesting against the Citizenship (Amendment) Act in January 2020. A bench of Justices Vikram Nath and Sandeep Mehta upheld a Delhi High Court decision which said their remarks did not incite communal violence or public disorder.
The order was part of a detailed judgement pronounced Wednesday in response to a set of petitions urging the top court to lay down binding guidelines on hate speech. One of the petitions in the set was a plea filed by Communist Party of India (Marxist) leaders Brinda Karat and K.M.Tiwari against the BJP duo.
On the larger issue of formulating directives to tackle hate speech, the court said such a ruling would amount to a legislative exercise which is not within its domain. The bench further observed the current legal framework is sufficient to deal with hate speech incidents. There is no vacuum in the law, but gaps persist in its implementation, it said.
On Verma and Thakur, the bench said: “Upon a careful consideration of the material placed on record, including the alleged speeches, the status report dated 26 February 2020 submitted before the trial court, and the reasons recorded by the courts below, we are in agreement with the conclusion that no cognisable offence is made out.”
The appeal before the Supreme Court stemmed from a Delhi High Court verdict which in June 2022 upheld a trial court order of August 2020 that dismissed Karat and Tiwari’s complaint against Verma and Thakur. The rejection was on technical grounds; the complaint was filed without prior sanction from the competent authority to prosecute the accused, a requirement under the law. This was because the two were sitting lawmakers then.
While rejecting the appeal challenging the trial court order, the Delhi High Court found no merit in the complaint as well. The statements by the two, it said, “were not directed against any specific community nor did they incite violence or public disorder”.
On sanction, it sustained the trial court, holding that an First Information Report (FIR) under Section 156(3) of the Criminal Procedure Code (CrPC), requesting a magistrate to direct registration of an FIR, could not be exercised in the absence of prior sanction.
While the top court held that the contents of the allegations do not constitute an offence alleged against the two, it disagreed with both the high court and trial court on the technical part. It said prior sanction to prosecute a sitting lawmaker would arise only at the stage of the magistrate taking cognisance of the police report or charge sheet, in case it is filed, not before.
“The scheme of CrPC does not contemplate any embargo on the direction for registration of an FIR or the conduct of investigation at the pre-cognisance stage. To hold otherwise would amount to introducing a restriction not envisaged by the legislature,” the apex court said.
“The process of criminal law is sequential: information of a cognisable offence must first be received; an FIR must then be registered; investigation must follow; a report under Section 173 of CrPC must thereafter be submitted; and it is only at that stage that the question of taking cognisance arises.”
“Investigating agencies, being creatures of statute, are bound by the duties and obligations cast upon them under the law. They cannot evade or dilute these statutory obligations by resorting to provisions which are inapplicable at the stage of investigation. Any such approach undermines the rule of law and erodes public confidence in the administration of criminal justice,” the bench said.
To rebut the argument given by the two courts on sanction, the top court reflected on the design of the criminal process, which it said is to protect “both the rights of the accused and the interests of society”. So, if requirement of sanction serves as a safeguard against frivolous or vexatious prosecution at the stage of cognisance, it cannot be permitted to operate as a shield to prevent the very initiation of the investigative process (registration of an FIR) where a cognisable offence is disclosed, the court said.
Emphasising that the rule of law mandates the machinery of investigation be set in motion in accordance with law, uninfluenced by extraneous considerations, the Supreme Court said failure on the part of the authorities to perform their statutory duties at the threshold stage defeats legislative intent and also places the ordinary citizen in a position of vulnerability against institutional inaction.
(Edited by Nardeep Singh Dahiya)
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