CJI on Himanta Biswa Sarma’s ‘hate speech’ case: Supreme Court not a political battleground

“The entire effort is to undermine, demoralise the high courts — which is not acceptable to us. There is a very calculated move to undermine the authority of the high courts. They are constitutional courts and have more power than us,” the CJI said.

“In our considered view, all these issues can be effectively adjudicated by the jurisdictional high court… consequently, without expressing any opinion on merits, we relegate the petitioners to approach the jurisdictional high court. Since the petitions have said that the matter requires urgent attention, we request the High Court Chief Justice to provide expeditious hearing,” the bench, also comprising Justices Joymalya Bagchi and Vipul M Pancholi, said.

Senior Advocate A M Singhvi, appearing for a petitioner, referred to 17 instances where the Supreme Court had directly entertained petitions exercising its writ jurisdiction under Article 32 of the Constitution. “The high court’s power is not in doubt. But why was Article 32 created? It was created for mega cases,” said Singhvi.

Article 32 grants individuals the right to move the Supreme Court for the enforcement of their Fundamental Rights.

The CJI said, “This is not the first case. Last couple of months, I have been telling… please don’t undermine our constitutional courts and high courts. This is absolutely a disturbing trend that every matter lands in this court.”

“This is not every matter,” argued Singhvi. Reading extracts from Sarma’s alleged speech, Singhvi said that it’s an “all-India issue”.

The CJI said, “Please come to us via the constitutionally prescribed route… we are always open… Because it suits some lawyer, every matter is filed in the Supreme Court. What are the high courts for? There are leading lawyers available there also.”

When the CJI said that it’s an effort to demoralise high courts, Singhvi said, “Your Lordships are speaking of demoralising high courts. Here is a person demoralising the constitutional ethos of the country.”

The CJI replied, “Go and approach the high court against him. Who is stopping you?”

Singhvi said no FIRs were being registered in the state on grounds of technical objections.

“The same set of reliefs which you are asking, can it not be granted by the high court? It can be. High court can grant more than that,” said the CJI.

As Singhvi again cited the “hate speech”, the CJI said, “Go to (HC) and seek an enquiry… give the HC an opportunity to examine… If you don’t get the desired relief… please come to us. We will examine.”

Singhvi said, “This is pan-India. He (Sarma) is speaking about an entire religion, and brazenly… the constitutional fabric and ethos of the country is threatened…”

The CJI said that if every matter across the country were to come to the Supreme Court, “it will be unmanageable for us, with 33 judges”.

Advocate Mohammad Nizamuddin Pasha, appearing for another petitioner, said there is a Supreme Court order that failure to register FIR in hate speech cases will attract contempt of court charges.

The CJI replied, “There is no contempt case before us. And you have not even gone to the high court. If you had gone and come here, we can understand… only because it’s the Supreme Court, (the) matter will come in the media… why should we become a playground for (all this)?”

CJI Kant added, “Go to high court. Have faith in the system… In our anxiety to invoke one jurisdiction, we must not undermine other jurisdictions… we are absolutely confident the high courts will deal with those matters strictly in accordance with law.”