Opinion Delhi hate speech case: A missed opportunity for justice

Rekha Sharma writes: Police pleaded that the time was not right to file cases, despite the availability of evidence. Even more disturbing was the court’s acceptance of this plea.

The case pertained to a criminal writ petition filed by Harsh Mander, whereby he sought directions to register FIRs against BJP leaders Anurag Thakur, Parvesh Verma, Kapil Mishra and Abhay Verma, for allegedly making hate speeches.

Rekha Sharma

March 15, 2022 09:38 AM IST First published on: Mar 15, 2022 at 04:00 AM IST

The Chief Justice of the Delhi High Court, D N Patel, retired on March 12. Judges, for better or worse, are known and remembered through their judgments. If today we remember Justice H R Khanna and shall cherish his memory for a long time to come, it is because of his judgment in the ADM Jabalpur case, holding that personal liberty is inalienable even when the country is in a state of Emergency. Justice Patel too had a similar opportunity, through which he could have covered himself in glory. But he allowed it to pass.

The case before Chief Justice Patel pertained to a criminal writ petition filed by social activist Harsh Mander, whereby he sought directions to the Delhi Police to register FIRs against BJP leaders Anurag Thakur, Parvesh Verma, Kapil Mishra and Abhay Verma, for allegedly making hate speeches alluding to those protesting against the Citizenship (Amendment) Act. These speeches purportedly led to violence in North-East Delhi and reportedly resulted in the death of 53 persons, and caused injuries to several hundred. Before the matter was heard by the Chief Justice’s bench, it had come up before a bench presided over by Justice S Muralidhar on February 26, 2020. The speeches were captured on camera, and the videos of the same were played in court.

In one video, Anurag Thakur was seen raising the slogan “Desh ke gaddaron ko”, and egging the crowd to complete the same, which responded by saying “Goli maro….ko”. The same slogan was allegedly repeated by Abhay Verma, a sitting MLA. In another video, Kapil Mishra, with DCP North-East Delhi standing by his side, was seen telling the crowd, “I am making one thing clear… we will hold our peace till Trump leaves. After that, if Jaffrabad and Chandbagh are not cleared in three days we will have to hit the streets…”. In yet another video, Parvesh Verma, MP, allegedly compared the protestors at Shaheen Bagh with those who were behind turning Kashmiri Pandits out of Kashmir, and also warned that such people could enter their homes, and rape their mothers and daughters.

After watching the videos, the court asked why no FIRs were registered on the basis of the same. In response, the Government of India, represented by no less a person than the Solicitor General, came with all guns blazing to defend the police’s action in turning a blind eye to speeches which, prima facie, answered the description of “hate speech”, and threatened to disturb the peace and harmony between different religious groups in terms of section 153A(a) and (b) of IPC. In his order, Justice Muralidhar noted that the refrain of the SG’s submission has been that the time was not “appropriate” or “conducive” for the registration of FIRs in relation to those clips. On being asked by the bench what would be the conducive time, the SG said that it was not possible for him to give any timeframe. The court asked the police to seriously consider the consequences that would ensue with each day’s delay in registering the FIRs. It posted the matter for February 27, 2020, after the Special Commissioner of Police assured the court that he would himself view all the videos, not limited to those placed in court, and take a conscious decision, which would be communicated to the court on the following day.

On February 26 itself, close to midnight, a notification was issued transferring Justice Muralidhar to the Punjab & Haryana High Court with immediate effect. Consequently, on the following day, the matter came before the Chief Justice’s bench. The SG submitted that the police were in the process of examining the audio/video clips, and that considering the complexity of the matter, they needed four weeks’ time to take a final decision. The court agreed to the request, and adjourned, posting the case for further hearing on April 13, 2020.

The court did not even bother to find out whether the Special Commissioner of Police had examined the videos, and taken a conscious decision on the same as per his submission before Justice Muralidhar’s bench. Besides, the police, which was obliged to promptly register an FIR on the apparent commission of cognisable offences and on account of Justice Muralidhar’s observations, got a reprieve. How could the police, which is supposed to maintain law and order at all cost, not register cases against the persons appearing in the videos, and hide behind the plea that the time was not appropriate and conducive for such an action? The plea, besides being not supported by any law, was frivolous and untenable. More disturbing was the ready acceptance of this plea by the court — which, under the Constitution, is the custodian and protector of the life and liberty of the people — when the videos prima facie showed that a particular community was being targeted. By adjourning the case to a distant date, the court put the same on the back-burner. In July 2020, the petitioner withdrew the writ petition, reserving his right to approach the jurisdictional court. His frustration can well be imagined when he decided to withdraw the petition although the jurisdiction to grant the relief rested in the High Court as well.

The heavens would not have fallen if the FIRs had been registered. Even if they were to fall, then, in the words of Lord Mansfield, “Let justice be done though heavens fall”.

This column first appeared in the print edition on March 15, 2022 under the title ‘Justice on back-burner’. The writer is a former judge of the Delhi High Court