The Delhi High Court’s handling of the petition seeking FIRs against the BJP leaders for their alleged hate speeches on February 27 amounts to abdication of constitutional duty. The time has come for the nation to be reminded that judges of the Supreme Court and high courts are constitutionally obliged to “make and subscribe… an oath or affirmation according to the form set out for the purpose in the Third Schedule.” The oath inter-alia requires the person to solemnly affirm, “that I will bear true faith and allegiance to the Constitution of India… that I will duly and faithfully act to the best of my ability, knowledge and judgment, perform duties of my office without fear or favour, without affection or ill-will and that I will uphold the Constitution and the laws.” Article 21, which every judge is bound to enforce provides, “No person shall be deprived of his life or personal liberty except according to procedure established by law.”
Yet, the Bench presided by Chief Justice D N Patel and Justice Hari Shankar acceded to the Centre’s argument that “the time was not conducive to file FIRs related to the alleged hate speeches as the priority right now is to ensure peace” and adjourned the hearing to as late as April 13. The Court apparently failed to consider that the loss of lives of more than 40 people, serious injuries to over 200 and damage to hundreds of houses and business establishments had taken place under the watch of the Delhi Police, directly under the control and supervision of the same Central government.
Providing the government time to file FIRs “at an appropriate time” is deeply disturbing. The Court being the guardian of the Constitution and parens patriae of citizens of Delhi was bound to have acted with alacrity. Enforcement of law does not wait for “conducive” timings and must be set in motion forthwith by the authorities failing which the high court can and must set that machinery in action.
It is axiomatic to bear in mind that the Delhi Police is quite eager to file instant FIRs against citizens who oppose this Central government — these include Kanhaiya Kumar and Harsh Mander. The Constitution Bench judgment of the Supreme Court in Kedarnath Singh v.State of Bihar (1962) is a binding authority that lays out the meaning of sedition under Section 124 A. “A citizen has a right to say or write whatever he likes about the government, or its measures, by way of criticism or comment, so long as he does not incite people to violence against the government established by law or with the intention of creating public disorder,” it points out. It then elaborates: “It is only when the words, written or spoken, etc. which have the pernicious tendency or intention of creating public disorder or disturbance of law and order that the law steps in to prevent such activities in the interest of public order.”
The bench approved the Federal Court’s decision in Niharendu Dutt Majumdar v. The King Emperor (1942) that “the gist of the offence of ‘sedition’ is incitement to violence or the tendency or the intention to create public disorder by words spoken or written, which have the tendency or the effect of bringing the Government established by law into hatred or contempt or creating disaffection in the sense of disloyalty to the State.”
The Delhi High Court also seemed to lose sight of the judgment of another constitution bench in Lalita Kumari v. Govt of UP (2013): “The registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognisable offence and no preliminary inquiry is permissible in such a situation.”
The Supreme Court in Mohd. Haroon and Ors.v. Union of India (2014), in an identical situation, entertained several writ petitions in respect of riots that erupted in and around Muzaffarnagar in UP in 2013, and held:”It is the responsibility of the state administration in association with the intelligence agencies of both the state and Centre to prevent such recurrence of communal violence in any part of the State. It is made clear that the officers responsible for maintaining law and order, if found negligent, should be brought under the ambit of law irrespective of their status. It is important that the relief, as enumerated above, not only be provided to all needy families irrespective of their religion but it should also be provided to only genuinely affected families.”
In Zahira Habibullah v. State of Gujarat (2004), in similar circumstances, the Supreme Court was compelled to observe: “If one even cursorily glances through the records of the case, one gets a feeling that the justice-delivery system was being taken for a ride and literally allowed to be abused, misused and mutilated by subterfuge. The investigation appears to be perfunctory and anything but impartial without any definite object of finding out the truth and bringing to book those who were responsible for the crime. The Public Prosecutor appears to have acted more as a defence counsel than one whose duty was to present the truth before the Court. The Court, in turn, appeared to be a silent spectator, mute to the manipulations and preferred to be indifferent to the sacrilege being committed to justice. The role of the state government also leaves much to be desired. One gets a feeling that there was really no seriousness in the State’s approach in assailing the trial court’s judgment… Criminal trials should not be reduced to be mock trials or shadow-boxing or fixed trials. Judicial criminal administration system must be kept clean and beyond the reach of whimsical political wills or agendas and properly insulated from discriminatory standards or yardsticks of the type prohibited by the mandate of the Constitution.”
Coming on the heels of the questionable transfer of Justice S Muralidhar — his bench had ordered registration of FIRs on hate speeches within 24 hours — the division bench presided over by Chief Justice Patel ought to have handled the matter more carefully. One cannot help feeling that the court has let the citizens down. For the same reason, the Centre represented by the country’s second highest law officer should also have been more circumspect. The proceedings have left a bitter taste in the minds of law abiding citizens.
One hopes that the judiciary will wake up and protect the citizens at all costs in times of serious breakdown of constitutional machinery — and not leave them to fend for themselves.
Also read | Opinion: The Supreme Court has overlooked the gravity of the Delhi violence
This article first appeared in the print edition on March 3, 2020 under the title ‘Justice not done’. The writer is president, the Supreme Court of Bar Association of India. Views are personal and do not reflect that of the Bar Association.
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