Move High Court: Supreme Court refuses to entertain petitions alleging hate speech by Assam CM targeting Muslims

The Supreme Court on Monday declined to entertain petitions seeking action against Assam Chief Minister Himanta Biswa Sarma over remarks allegedly targeting Muslims in the State.

Petitions in the matter had been filed by the by Communist Party of India (Marxist), Annie Raja, a leader of the Communist Party of India (CPI), and Assamese scholar Dr Hiren Gohain.

However, a bench of Chief Justice of India Surya Kant, Justices Joymalya Bagchi and Vipul Pancholi today opined that it would be better if the Gauhati High Court deals with the matter.

"All these issues can be effectively adjudicated by the jurisdictional High Court. We see no reason to entertain this here and thus we relegate the petitioner to the jurisdictional High Court. We request the High Court Chief justice to prioritise the hearing since the counsel have cited urgency in the matter," the Court ordered.

The Court clarified that while it has the jurisdiction to directly hear the matter, it was not in favour of entertaining "shortcuts" where petitions are heard first by the Supreme Court before even approaching the High Court.

"You have not even gone to the High Court. I am on the shortcut. In our anxiety to invoke one jurisdiction, we cannot undermine the jurisdiction of another. This court cannot become a playground for all this. Any cause of action arising within jurisdiction of that High Court, we are confident that High Court can look into this and decide," said CJI Kant.

Senior Advocate CU Singh submitted that some individuals had already written to the Chief Justice of the Gauhati High Court to take cognisance of Sarma's remarks. He also pointed out that Sarma had made hateful comments not only in Assam, but in Chhattisgarh and Jharkhand as well.

Senior Advocate AM Singhvi, also for the petitioners, argued that Sarma's remarks affect the entire country and that he is a "habitual offender", making it an appropriate case for the Supreme Court to intervene.

The apex court, however, maintained that the matter must first be heard by the High Court.

"Otherwise, won't it become unmanageable that all these cases come before the Supreme Court? Please go through the channel, trust the HC and let them decide. We can ask the High Court that all petitions be entertained in a prioritised sense of importance ... Once you file a plea, you have to be heard.. Suo motu is a prerogative of the Court. Individuals are eminent personalities.. we are not on ideologies. That is what disturbs me - when they say they will not touch the High Court. I am confident the High Court can decide all of this," said CJI Kant.

The petitions before the Court were tied to a controversial video shared by the Assam Bharatiya Janata Party (BJP) that allegedly depicted Chief Minister Sarma firing at members of a particular community. The video was accompanied by, and in parts overlaid with, textual phrases such as “Point blank shot” and “No Mercy”.

The pleas also sought action against Sarma for a series of remarks made by him targeting Muslims of the state.

In a speech, Sarma is said to have stated at a public gathering that “four to five lakh Miya voters” would be removed from the electoral rolls and that “Hemant Biswa Sarma and the BJP are directly against Miyas”.

The term “Miya” is used to address Muslims in a derogatory manner.

The CPI(M)'s plea before the Court argued that such material serves to reinforce and amplify a climate of hostility, exclusion, and intimidation directed against the minority community.

Among others, the Jamiat Ulama-i-Hind had also moved the Court against Sarma's speech.

However, the top court made it clear at the outset during today's hearing that it was not inclined to entertain the matter, without the High Court first being approached.

"Why have you not gone to the HC? Unless HC also has become a ground for political battle," remarked CJI Kant.

"This affects the fundamental rights under Article 14,15 and 21. If this case cannot come here then this court has to determine what is the contour of Article 32 (which allows litigants to directly approach Supreme Court for relief where there is a violation of fundamental rights)? We are seeking a SIT and what SIT in Assam can do against Boss of Assam? There is a list of 17 cases before you where have ordered this in much weaker," replied Senior Advocate Singhvi.

The Court then reiterated concerns that such cases are often filed on political considerations.

"We will ask political parties to use restraint and be within the boundaries of constitutional morality. But this is becoming a trend just before the elections," observed CJI Kant.

Singhvi, however, urged the Court to intervene on concerns that there are numerous instances of hate speech alleged against Chief Minister Sarma.

"He is a habitual and repeated offender. This would be the ideal case for Supreme Court to exercise its Article 32 power. There are examples of Bilkis Rasool , Vinod Dua etc," Singhvi said.

The Court maintained that the High Court is well equipped to deal with this case.

"I have been telling this repeatedly that please do not undermine the sanctity of constitutional High Courts. I have seen this trend repeatedly. By establishing the judicial and quasi judicial tribunals you have already bypassed the High Court. The judges in High Court, who have short tenure, don't even get to learn environmental law etc. Please come to us through the constitutional route," said CJI Kant.

Singhvi went on to argue that public rights would stand diminished if the matter is not heard. He suggested that, at the least, the case could be sent to a High Court other than the one in Assam, given that the petitions seek action against the State's sitting Chief Minister.

"If this is not heard, rights of people will be diminished. This is the sitting Chief minister who is asking for land not to be given. We are seeking a FIR. In Assam where to file FIR, send me to another HC then," Singhvi urged.

The Court rejected the request outright.

"It cannot become a convenience forum shopping just because senior lawyers are based here. There are good lawyers there as well. The entire effort is to undermine the authority of the High courts and this is the calculated effort being done. Sending to another HC is a serious aspersion which I outrightly reject ..I have to take care of judicial administration all across the country," CJI Kant said.

Further criticising the move to approach the Supreme Court directly in the matter, without first going to the High Court, the CJI said,

"Thanks to basic structure (doctrine), someone has not been able to amend Article 226 (writ jurisdiction of High Courts), otherwise that would also be done. Only this power is with the High Court now ... When we talk of access to justice. Article 226 is created by the same. So that you can go to nearest High Court and seek justice. We are not saying, we don't have jurisdiction.. if you don't succeed, come here."