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Justice Chandra Dhari Singh of Delhi High Court has observed that bypassing the procedure under the Criminal Procedure Code Code is in vogue these days. The judgment says, “The beauty of procedural law lies in the stages and remedies available during the course of a criminal proceeding.”

The judge observed the above while dismissing a plea filed by CPI (M) leaders Brinda Karat & KM Tiwari against order rejecting their plea for registration of FIRs against Anurag Thakur and Parvesh Verma for allegedly delivering alleged hate speech.

The judgment opens with verse of Bhagwad Gita which means "whatever action is performed by a leader, common men follow in his footsteps; and whatever standards he sets by his acts, are pursued by his subjects.” It has been observed in the opening paragraphs that the persons who are mass leaders and occupy high offices must conduct themselves with utmost integrity and responsibility.

The judge noted that leaders elected in a democracy like that of India, owe their responsibility not only towards the electorate in their own constituency, but also towards the society/nation as a whole and ultimately to the Constitution.

The question that was to be adjudicated by the court was whether the Magistrate was right while dismissing Karat and Tiwari's plea on the ground that they did not have jurisdiction because a sanction needs to be obtained to prosecute the persons against whom allegations were made.

To this effect, the court analysed the existing law on hate speech in conjuncture with the provisions of the Criminal Procedure Code. While discussing hate speech, the judge observed that hate speeches incite violence and feelings of resentment against members of specific communities, thereby causing fear and feeling of insecurity in the minds of the members of those communities.

The judgment reads that hate speech marginalises individuals based on their membership in a group by using expressions that expose the group to hatred. The judge while considering that there have been and continue to be instances of hate speeches in different parts of the country targeted against people of specific communities, based upon the demographic composition, observed in the judgment that “there have even been instances of demographic shifts in the aftermath of such Hate/Inflammatory speeches, the exodus of Kashmiri Pandits from the Kashmir valley is a prime example.” 

Regarding the provisions of the Constitution relating to freedom of speech, the judgment states that the Constitution provides for reasonable restriction on freedom of speech. The judgment notes that reasonable restrictions include public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence. According to the judgment, “Hate speeches not only cause defamation but also incite offences against a particular sect of religion of this nation.”

Referring to the judgment of Supreme Court in Pravasi Bhalai Sangathan v. Union of India, the judge observed in the judgment that laws related to “hate speech” must be applied “objectively” and that the problem with laws relating to hate speech is rooted in their non-execution.

The judge then proceeded to speak of the Law Commission’s recommendation for a test to determine what amounts to a hate speech. According the the judgment, in order to qualify a speech as a hate speech, the following questions must be answered

A) Is the interference prescribed by law?

B) Is the interference proportionate to the legitimate aim pursued?

C) Is the interference necessary in a democratic society?

The judgement further considers the Law Commission’s recommendation that in order to qualify as hate speech, the speech must be offensive and project the extreme form of emotion. "Every offensive statement, however, does not amount to hate speech. The expressions advocacy and discussion of sensitive and unpopular issue have been termed ‘low value speech’ unqualified for constitutional protection,” it reads.

While considering that India has statutory provisions and particularly the penal law to provide sufficient remedy to curb the menace of “hate speeches”, it is noted that executive as well as civil society has to perform its role in enforcing the already existing legal regime. It has been held that effective regulation of “hate speeches” at all levels is required and all the law enforcing agencies must ensure that the existing law is not rendered a dead letter.

The judgment analyses the requirement of sanction under Section 196 of the Criminal Procedure Code which provides the procedure for prosecuting offences against the State and for criminal conspiracy to commit such offence. The court upon analysing a plethora of judgments has observed that the legislative intent behind the provision is that the offences mentioned under Section 196 should not be ordered to be investigated in a routine manner.

It has been observed that if such investigations are ordered in routine manner for the offences, it would lead to a situation where thousands of FIRs would be registered to settle scores against political opponents across the country. "This would not only be undesirable and an abuse of process but would also result in choking of the already overburdened criminal justice machinery," the judgment adds.

Court while considering the limitations of writ jurisdiction has held that writ to compel the police to conduct an investigation or lodge an FIR can be denied for not exhausting the alternative and efficacious remedy available under the provisions of the Criminal Procedure Code.

It has been observed that a worrying phenomenon that has gained traction and is in vogue these days is of bypassing the procedure under the Criminal Procedure Code Code.  The judgment says “The beauty of procedural law lies in the stages and remedies available during the course of a criminal proceeding.”

The judgment notes that in the present case the petitioner also seems to have adopted a similar attitude. Enumerating on the facts, the judgment states that Karat on January 29, 2020 filed a complaint against Anurag Thakur and Parvesh Verma to the Commissioner of Police, Delhi asking for registration of FIR against the two directly, without approaching the SHO.

In furtherance of the said complaint, on January 31, 2022 another letter was addressed to the Commissioner stating therein that inaction of police over their complaint has led to an incident wherein, according to the letter, an armed man shot at protesting students, it reads.

Court noted that it was only on February 2, 2020, that Karat, by way of a letter addressed to the SHO, Parliament Street Police Station, New Delhi, made a request to immediately file FIR. However within three days of  addressing the letter,  Karat filed an application under Section 156(3) of the Code before the Magistrate seeking registration of FIR .  Court has noted that upon dismissal of the complaint, there was an alternate remedy to approach the appellate court against the order rather than approaching the High Court directly by way of a writ petition.

The status report filed by the investigating agency was considered by the court to note that:

1. With regard to allegations against Anurag Thakur, it is stated that the connotation/meaning of the word “gaddar” is traitor, and as such does not target or refer to any specific community. Thus, it does not amount to commission of any cognizable offence as alleged by the complainants.
2. With regard to allegations against Verma it is stated that he has only stated his position on the erstwhile protest ongoing in Shaheen Bagh, and not any specific community or its members
3. There was no connection whatsoever to the speeches in question and the acts of violence.

Court has noted that the opinion of the agency cannot be discarded as such without application of judicial mind. It has further been observed that the Investigating Agency in the present case has filed the status report specifically stating that no cognizable offence has been made out.

Court has thus dismissed the case observing that:

1. Firstly, the appropriate sanction of government is required for investigation under Section 196 of the Code.
2. Secondly, there is alternative and efficacious remedy available under the Code that needs to be taken resort of, before invoking the writ jurisdiction of the High Court.
3. Finally, the petitioners have FAILED to satisfy the Court and no case is made out warranting the intervention of the High Court at this stage.

Case title: Brinda Karat Vs State of NCT of Delhi