While fully, firmly, and finally condemning the increasing reprehensible use of contemptuous hate speeches by political and religious leaders, the Delhi High Court has in an extremely laudable, learned, landmark and latest judgment titled Brinda Karat And Anr v. State of NCT of Delhi And Anr. in W.P.(CRL) 1624/2020 & CRL.M.A. 13859/2020 and cited in 2022 LiveLaw (Del) 567 that was pronounced finally on June 13, 2022 minced just no words in making it absolutely clear that:
Hate speeches especially delivered by elected representatives, political and religious leaders based on religion, caste, region or ethnicity militate against the concept of fraternity, bulldoze the constitutional ethos, and violates Articles 14, 15, 19, 21 read with Article 38 of the Constitution and is in blatant derogation of the fundamental duties prescribed under Article 51-A (a), (b), (c), (e), (f), (i), (j) of the Constitution and therefore warrant stringent peremptory action on the part of Central and State Governments.

It certainly merits no reiteration that the hate speeches delivered by different political and religious leaders constitute a direct threat and direct assault to the very unity and integrity of India and therefore has to be dealt with most seriously on a war footing by punishing those who deliver them most strictly! Such hate mongers are blind followers of British policy of Divide and Rule! Britishers left India 75 years back but these hate mongers want Britishers to come back again to rule India! No doubt, our penal laws should be also suitably amended by our lawmakers to ensure that those who deliver hate speeches don’t come out of the jail for at least 14 or 15 years!

To start with, this brief, brilliant, bold and balanced judgment authored by a single Judge Bench of Delhi High Court comprising of Justice Chandra Dhari Singh sets the ball rolling by first and foremost putting forth in para 1 that:
The shloka from Bhagwad Gita succinctly states - 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. With great power comes great responsibilities - goes another popular quote. The persons who are mass leaders and occupy high offices must conduct themselves with utmost integrity and responsibility. 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. It is they who are the role models for the ordinary masses. Thus, it does not befit or behove the leaders to indulge in acts or speeches that cause rifts amongst communities, create tensions, and disrupt the social fabric in the society.

Most commendably, the Bench then minces no words to hold in para 2 that:
Hate speeches especially delivered by elected representatives, political and religious leaders based on religion, caste, region or ethnicity militate against the concept of fraternity, bulldoze the constitutional ethos, and violates Articles 14, 15, 19, 21 read with Article 38 of the Constitution and is in blatant derogation of the fundamental duties prescribed under Article 51-A (a), (b), (c), (e), (f), (i), (j) of the Constitution and therefore warrant stringent peremptory action on the part of Central and State Governments.

As we see, the Bench then states in para 3 that:
The instant petition arises out of the impugned order of dismissal of Application of Petitioners under Section 156 (3) of Code of Criminal Procedure, 1973 (hereinafter referred to as the Code) dated 26.08.2020 passed in Ct. Case No. 04/2020 titled Brinda Karat & Anr. v. State, by the Court of the Ld. Additional Chief Metropolitan Magistrate (I), Rouse Avenue Courts, Delhi (hereinafter referred to as the ACMM). By way of the instant petition, the petitioners have prayed as under:

a. Pass a Writ of Certiorari setting aside/quashing Order dated 26.08.2020 passed in Brinda Karat & Anr. v. State, Ct. Cas. No. 04/2020, by the Ld. Additional Chief Metropolitan Magistrate (I), Rouse Avenue Courts, Delhi; and

b. Without prejudice to Prayer (i), exercise jurisdiction under Article 227 read with S.483 CrPC directing expeditious disposal of Applications under Section 156(3) CrPC and direct that technical objections and maintainability be decided at the threshold to avoid prejudice to the Complainant and wastage of judicial time; and

c. Issue directions in the nature of a writ of mandamus under Article 226 of the Constitution to the Respondent State to widely publicize the manner in which such prior sanction can be obtained by a complainant / applicant preferring a Complaint under Section 200 CrPC, for the offences mentioned in Ss. 195 and 196 CrPC, to facilitate access to justice.

FACTUAL MATRIX
To put things in perspective, the Bench then envisages in para 4 that:
The matter has arisen out of the facts as detailed hereunder:

a. Both the petitioners are politicians of the Communist Party of India (Marxist) (hereinafter CPI(M)). As per the contents of the petition, Petitioner No. 1 is a member of the Polit Bureau of the CPI(M) and a former Member of Parliament. Petitioner No. 2 is a member of the Central Committee of the CPI(M), in addition to being the Secretary of Delhi State Committee of CPI(M).

b. It is the petitioners’ case that on 27th January 2020, Mr. Anurag Thakur, a Union Minister and Member of Parliament, allegedly made a hate speech at a rally in Rithala shouting the slogan desh ke gaddaron ko'' and exhorting the crowd to respond with goli maaron saalon ko.

c. It is further alleged that on 28th January 2020, Mr. Parvesh Verma, Member of Parliament from West Delhi Lok Sabha Constituency, made inflammatory hate speeches while campaigning for the Bharatiya Janata Party (hereinafter BJP). Allegations are also levelled against him qua his interview to ANI, wherein he is stated to have threatened use of force to remove protestors at Shaheen Bagh and promoting hatred and enmity by portraying them as invaders.

d. As per the petition, the petitioners on 29th January 2020 made a complaint against Mr. Anurag Thakur and Mr. Parvesh Verma to the Commissioner of Police, Delhi asking for registration of FIR against the two alleging them of having committed serious cognizable offences of inciting communal enmity, extending threats and making statements prejudicial to national integration.

e. In furtherance of the said complaint, on 31st January 2020, another letter was addressed to the Commissioner stating therein that because of inaction of police over their complaint has led to an incident wherein, according to the letter, an armed man shot at protesting students. In this second letter the petitioners again urged the Commissioner to take immediate action, file FIRs and take preventive steps against Hindu Sena.

f. On 2nd February 2020, the petitioners, by way of a letter addressed to the SHO, Parliament Street Police Station, New Delhi, made a request to immediately file FIRs against Mr. Anurag Thakur and Mr. Parvesh Verma, enclosing therein the two aforementioned representations made earlier to the Commissioner.

g. Subsequently, on 5th February 2020, the Petitioners filed an Application under Section 156(3) of Code seeking registration of FIR before the Additional Chief Metropolitan Magistrate (I), Rouse Avenue Courts, Delhi, which was registered as Ct. Case No.04/2020. The Application, inter alia, sought for registration of FIR against the accused persons for offences under Sections 153A/153B/295A/298/504/505/506 of the Indian Penal Code, 1860.

h. ATR was called from the DCP District New Delhi. Subsequently, as per the record of the proceedings of the Court below, on 11th February 2020, ATR was filed by the Special Investigation Unit of Crime Branch and was taken on record. On the said date, the Crime Branch was directed to expedite the preliminary inquiry and file the detailed ATR in next 15 days.

i. In the proceedings dated 26th February 2020, the status report was filed by the investigating agency, wherein it was recorded that on the basis of allegations levelled in the complaint, prima facie no cognizable offence was found to be committed. The Copy of the Status Report was supplied to the other side and arguments were heard. The matter was posted for orders on 2nd March 2020.

j. On 2nd March 2020, the Court of ACMM-I was informed that a WP (CRL) 565/2020 titled as Harsh Mander and Another v. GNCTD and Others was pending before this High Court containing the same averments and seeking the same relief as was being made in the petitioners’ application. In view of the fact that the High Court was already seized of the matter and had listed the matter for 13th April 2020 giving the opportunity to the Union of India for filing its response, the ACMM chose not to pass any order in the application till the outcome of the said writ petition.

k. On 26th August 2020, the ACMM dismissed the Petitioners’ Application under Section 156(3) of the Code, recording the finding that the application was not tenable in the eyes of law on the ground that there was no previous sanction obtained by the complainants/petitioners from the competent authority to prosecute the named individuals for the offences alleged in the complaint.

l. Aggrieved by the said Order, the petitioners have approached this Court under Articles 226/227 of the Constitution of India read with Sections 482/483 of the Code praying inter alia for setting aside of the impugned Order.

While dwelling on the dangerous and devastating consequences of hate speech, the Bench then underscores in para 59 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. In fact, it marginalizes individuals based on their membership in a group by using expressions that expose the group to hatred. Hate speeches are almost invariably targeted towards a community to impart a psychological impact on their psyche, creating fear in the process. Hate speeches are the beginning point of attacks against the targeted community that can range from discrimination to ostracism, ghettoization, deportation, and, even to genocide.

Frankly speaking, the Bench then concedes in para 60 that:
The methodology is not restricted to any religion or community in specific. There have been and there continue to be instances of hate speeches in different parts of the country targeted against people of specific communities, based upon the demographic composition. 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.

Needless to say, the Bench notes in para 63 that:
Article 7 of the Universal Declaration of Human Rights (UDHR) as adopted by General Assembly provides that everyone is equal and entitled to equal protection against discrimination, and against incitement to such discrimination.

Furthermore, the Bench then stipulates in para 64 that:
Further, the International Covenant on Civil & Political Rights, 1966 (ICCPR), which India ratified in 1992 places positive obligations to limit speech on governments. Article 20(2) of the ICCPR states that any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law. In other words, Article 20(2) requires the signatory governments to prohibit hate speech.

While continuing in same vein, the Bench then states in para 65 that, Similarly, Articles 4 and 6 of the International Convention on the Elimination of All Forms of Racial Discrimination, 1965 (ICERD) prohibits the elements of hate speech and mandates the member states to make a law prohibiting any kind of hate speech through a suitable framework of law.

Quite remarkably, the Bench then mandates in para 70 that:
Article 15 of the Constitution of India provides for prohibition of discrimination against any citizen on grounds of only of religion, race, caste, sex, or place of birth or any of them. The Hon’ble Supreme Court on numerous instances has reiterated the same, in Zahira Habibulla H. Sheikh v. State of Gujarat (2004) 4 SCC 158, this Hon’ble Court held that:

65. In a country like ours with heterogeneous religions and multiracial and multilingual society which necessitates protection against discrimination on the ground of caste or religion taking lives of persons belonging to one or the other religion is bound to have dangerous repercussions and reactive effect on the society at large and may tend to encourage fissiparous elements to undermine the unity and security of the nation on account of internal disturbances. It strikes at the very root of an orderly society, which the founding fathers of our Constitution dreamt of.

66. When the ghastly killings take place in the land of Mahatma Gandhi, it raises a very pertinent question as to whether some people have become so bankrupt in their ideology that they have deviated from everything which was so dear to him. When a large number of people including innocent and helpless children and women are killed in a diabolic manner it brings disgrace to the entire society. Criminals have no religion. No religion teaches violence and cruelty-based religion is no religion at all, but a mere cloak to usurp power by fanning ill feeling and playing on feelings aroused thereby. The golden thread passing through every religion is love and compassion. The fanatics who spread violence in the name of religion are worse than terrorists and more dangerous than an alien enemy.

It cannot be glossed over that the Bench then discloses in para 71 that:
The Hon’ble Supreme Court has recognized ‘hate speech’ as being violative of constitutional guarantees under Article 14, 15 and 21. In the case of Pravasi Bhalai Sangathan v. Union of India (2014) 11 SCC 477, at Paragraph 8, it has been held that it is the idea of discrimination that lies at the heart of hate speech principles. It was held as under:

8. Hate speech is an effort to marginalise individuals based on their membership in a group. Using expression that exposes the group to hatred, hate speech seeks to delegitimise group members in the eyes of the majority, reducing their social standing and acceptance within society. Hate speech, therefore, rises beyond causing distress to individual group members. It can have a societal impact. Hate speech lays the groundwork for later, broad attacks on 26 vulnerable sections that can range from discrimination, to ostracism, segregation, deportation, violence and, in the most extreme cases, to genocide. Hate speech also impacts a protected group’s ability to respond to the substantive idea under debate, thereby placing a serious barrier to their full participation in our democracy.

Notably, the Bench enunciates in para 73 that:
Pursuant to the aforesaid judgment of Pravasi Bhalai Sangathan (supra) the Law Commission of India reviewed the laws on Hate speech and made recommendations in its 267th Report. Relevant extracts from the same are reproduced hereunder:

Tests for determining hate speech
4.13 Three tests have been adopted by the courts while recognising whether a speech amounts to hate speech or not. Once it has been established that there has been an interference with freedom of expression, the courts resort to a three-fold analysis to determine the legitimacy of such interference:
(a) Is the interference prescribed by law? The law that allows limitation of article 10 of ECHR must be prescribed by the statute and must be precise so that the citizens can regulate their conduct in accordance with the law and foresee the consequences of the impermissible conduct.

(b) Is the interference proportionate to the legitimate aim pursued? It has been opined by the court in Handyside v. United Kingdom,49 that the restrictions imposed by the State under article 10(2) on freedom of expression must be ‘proportionate to the legitimate aim pursued.’

(c) Is the interference necessary in a democratic society? This test requires a careful examination of the fact to determine whether the freedom was limited in pursuance of a legitimate social need and in order to protect the principles and values underlying ECHR.

5.3 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.

6.2 Incitement to violence cannot be the sole test for determining whether a speech amounts to hate speech or not. Even speech that does not incite violence has the potential of marginalising a certain section of the society or individual. In the age of technology, the anonymity of internet allows a miscreant to easily spread false and offensive ideas. These ideas need not always incite violence but they might perpetuate the discriminatory attitudes prevalent in the society. Thus, incitement to discrimination is also a significant factor that contributes to the identification of hate speech.

It is worth noting that the Bench then observes in para 77 that:
In India, the constitutionality of hate speech restrictions has been upheld in the interest of ‘public order’ in as much as it continues to be punishable under the Indian Penal Code, 1860 as well as other laws and statutes in force, an illustrative list of which is provided hereunder:

Quite candidly, the Bench then mentions in para 78 that:
The statutory provisions and particularly the penal law provide sufficient remedy to curb the menace of hate speeches. The executive as well as civil society has to perform its role in enforcing the already existing legal regime.

Be it noted, the Bench then remarkably mentions in para 79 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. Enforcement of the aforesaid provisions is required being in consonance with the proposition salus reipublicae suprema lex (safety of the state is the supreme law).

Most significantly, the Bench then holds in para 127 that:
In light of the aforesaid discussion and reasoning, what emerges is firstly, that the appropriate sanction of government is required for investigation under Section 196 of the Code. Secondly, there is alternative and efficacious remedy available under the Code that needs to be taken resort of, before invoking the writ jurisdiction of this Court. Thirdly, in the instant case, the ACMM has rightly decided the application before it. The provisions of Section 156(3) for directing investigation qua offences mentioned in Section 196 of the Code cannot be exercised by the Court without sanction. There is no prima facie irregularity that is apparent upon a perusal of the impugned order. Fourthly, the petitioners have failed to satisfy the Court and no case is made out warranting the intervention of this Court at this stage.

As a corollary, the Bench then directs in para 128 that:
Hence, in light of the foregoing discussion and analysis, there are no cogent reasons to entertain the petition and allow the prayers sought therein. In the aforesaid terms, the petition stands dismissed.

In conclusion, there has to be complete zero tolerance for all kinds of hate speeches. Those religious and political leaders who dare to deliver hate speeches must be sent behind bars for at least 14 to 15 years without any discrimination and no bail should be given nor any parole so that a very strong message goes out among one and all that those who deliver hate speeches will have to spend decades behind bars! It certainly merits no reiteration that the Delhi High Court has thus ruled very rightly, robustly and rationally on hate speech and we have already dwelt about it quite in detail as stated hereinabove!

Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi (Retd), A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001