The 2018 guidelines remained in cold storage in the tenure of two successive chief justices

Mohd Naushad Khan, with inputs from some legal luminaries, wonders whether the Supreme Court’s October 21 order to the state governments and police authorities to take ‘suo motu action’ on hate speech makers without waiting for a complaint to be filed, be implemented in right earnest.

On 21 October, the Supreme Court of India, while hearing a petition filed by Shaheen Abdullah, directed the state governments and police authorities to take “suo motu action” on hate speech makers without waiting for a complaint to be filed. The Supreme Court has asked for status reports from Delhi, Uttarakhand and Uttar Pradesh governments on action taken by their police on hate speeches within their jurisdictions.

“The complaint which has been raised in the instant writ petition appears to be very serious. It relates to the growing climate of hate in the country. This is attributable according to the petitioner to an unending flow of what is described as hate speeches being made by various persons against the Muslim community. The instances are chronicled, though in an abridged form, in the writ petition. The complaint of the petitioner is one of despondency and angst arising from the perception that despite suitable provisions in penal law being available, there is inaction or rather total inaction,” the court said in its order.

“The Constitution of India envisages Bharat as a secular nation and fraternity assuring the dignity of the individual and unity and the integrity of the country is the guiding principle enshrined in the Preamble. There cannot be fraternity unless members of community drawn from different religions or castes of the country are able to live in harmony. We feel that this Court is charged with the duty to protect the fundamental rights and also preserve the constitutional values and the secular democratic character of the nation and in particular, the rule of law. The matter needs examination, and some form of interim directions,” the court order said.

“Suo moto action will be taken to register cases even if no complaint is forthcoming and proceed against the offenders in accordance with law. We make it clear that any hesitation to act in accordance with this direction will be viewed as contempt of this Court and appropriate action will be taken against the erring officers. We further make it clear that such action will be taken irrespective of the religion that the maker of the speech or the person who commit such act belongs to, so that the secular character of Bharat as is envisaged by the Preamble, is preserved and protected,” the court in its order observed.

According to Sanjay Hegde, senior Supreme Court lawyer, “No mere pious expression of disgust on the part of the Supreme Court will have an impact on the purveyors of hate. It is only when actions or lack of action have demonstrable consequences, that the system will be forced to act. If a few policemen are in fact pulled up for inaction and are goaded into action against hate speech, that is when the campaign may bear fruit.”

“The Supreme Court’s recent directive requiring the regulatory mechanism to take action in response to hate speech is one example of the judiciary’s willingness to address a problem that has largely gone unaddressed for the past few years. This is the second occasion in the past week that the Supreme Court has cited the mandates of “fraternity” and “secularism” in the constitution to guarantee that constitutional principles control the fundamental ethos of societal norms,” said M. R. Shamshad, senior lawyer, Advocate on Record, Supreme Court of India.

“The constitutional courts have already spent a significant amount of time due to the police authority’ inaction in starting criminal proceedings. Despite the obligatory requirement under the CrPC, the police authorities’ inaction resulted in the current order on hate speech. In other cases, when a mob protested against the police’s inaction against hate speech, FIRs were filed against the protestors, who were then detained. In these situations, the initial offence went unpunished. In other cases, hate speech offences of a similar nature perpetrated by members of a different class are immediately identified and dealt with. Because of this, the entire procedure is arbitrary and unfair,” said M.R. Shamshad.

Fuzail Ahmad Ayyubi, Advocate on Record, Supreme Court of India, while welcoming Supreme Court’s recent intervention against hate speech, said, “It is most certainly a welcome order rather a milestone in containing hate speech. Although it is also not the first time that the Supreme Court has expressed its concerns regarding the rising climate of hatred and intolerance in the country. In 2018, the then Chief Justice Dipak Misra’s bench had rendered an exhaustive judgment detailing preventive, punitive and remedial guidelines to be followed by all States and Police forces in relation to mob lynchings or hate crimes. After that recently, Justice Khanwilkar had also asked for the said guidelines to be followed.”

“So far as impact of a judgment is concerned, it depends on how proactively the concerned State implements the word of the Apex Court. The 2018 guidelines and the case where they were issued, though establishing a strong framework to prevent any such incidents, remained in cold storage in the tenure of at least two successive chief justices. Contempt petitions in that case still remain pending. Justice Joseph’s order now is a milestone in the sense that it not only directs the State to take stringent action in accordance with law but also contains a warning for the erring officials failing to comply with this order,” Advocate Ayyubi argued.

Dr Narender Nagarwal, Faculty of Law, Delhi University, recently while delivering a lecture on Minorities, Constitution and Rule of Law in the national capital said, that the head of the UNO during his visit to New Delhi had asked to contain hate speech but our Apex Court did nothing to control hate speech on time. It is good to see that the Supreme Court has finally intervened and we do hope that it will also ensure its implementation in order to serve the purpose.

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