Delhi High Court rejects plea by Brinda Karat seeking FIR against Anurag Thakur, Parvesh Verma for hate speech

The Delhi High Court on Monday rejected the plea filed by Communist Party of India (Marxist) leaders Brinda Karat and KM Tiwari challenging a trial court decision that had refused to order registration of first information report (FIR) against BJP leaders Anurag Thakur and Parvesh Verma for alleged hate speech [Brinda Karat & Anr v. State]..Justice Chandra Dhari Singh dismissed the plea after noting that the government's sanction required under Section 196 of the Code of Criminal Procedure for investigation had not been obtained."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," the Court said. Pertinently, the Court stated that the legislative intent behind requiring government sanction and a preliminary probe that made out a cognisable offence, before calling for an FIR, was to prevent misuse of hate speech laws against political opponents. "... an additional layer of scrutiny albeit discretionary has been provided under Section 196(3) which says that the Government before granting such sanction may order a preliminary investigation by a police officer not below the rank of police officer. If such investigations are ordered in routine manner for the offences under Section 295-A, 153-A and Section 505, that 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."In August, 2020, a Delhi court had dismissed the plea seeking FIR against Thakur and Verma for their alleged inflammatory speeches made during the Delhi assembly elections in 2020 when anti-Citizenship Amendment Act (anti-CAA) protests were ongoing in the national capital.Additional chief metropolitan magistrate Vishal Pahuja in his order stated that the complainants, Karat and Tiwari, hadn’t obtained previous sanction from the “competent authority” in order to prosecute the BJP leaders.The complainants had alleged Thakur had raised chants of "desh ke gaddaron ko, goli maaro saalon ko" in reference to persons who participated in "peaceful protests against the Citizenship Amendment Act (CAA)". Verma, they alleged, threatened anti-CAA protesters at Shaheen Bagh.The offences alleged against the two politicians related to promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc; imputations, assertions prejudicial to national-integration; deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs; uttering, words, etc, with deliberate intent to wound the religious feelings of any person; intentional insult with intent to provoke breach of the peace; public mischief and criminal intimidationThe High Court even as it dismissed the plea, observed that political leaders must conduct themselves with high integrity and responsibility and be role models, and not indulge in provocative/hate speeches. Such speeches by elected representatives 'bulldoze' constitutional ethos and is violative of fundamental duties, the High Court noted."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," the judgment said.The Court emphasised that existing statutory and penal law provisions have sufficient remedies to curb hate speech."The executive as well as civil society has to perform its role in enforcing the already existing legal regime. 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."Even so, the Court noted that the petitioner had not challenged the order of the court below, which in turn does not suffer from any gross illegality. Since the fundamental rights of the petitioner have not been violated, it cannot ask the High Court to then issue a writ directing a probe, it was ruled.The High Court expressed concern at the petitioner bypassing remedies under the Criminal Procedure Code in this case, terming it a trend and a 'worrying phenomenon that has gained traction and is in vogue these days'."The beauty of procedural law lies in the stages and remedies available during the course of a criminal proceeding. The High Courts have been flooded with writ petitions praying for registration of FIRs or praying for a proper investigation. If the High Courts entertain such writ petitions, it will open pandora’s box and would crumble the already overtaxed system," the Court opined. As to the magistrate court order, the High Court noted that the same was only pronounced in accordance with the police's status report finding no cognisable offence having been made out..Advocates Tara Narula, Adit S Pujari, Aparajita Sinha and Chaitanya Sundriyal represented the petitioner. Central Government Standing Counsel Amit Mahajan and Special Public Prosecutor Rajat Nair with advocates Dhruv Pande and Kritagya Kumar appeared for the respondents. [Read Judgment]