Hate speech: No cognisable offence made out against Anurag Thakur, Parvesh Verma, says Supreme Court

New Delhi: The Supreme Court has said that no cognisable offence was made out against BJP leaders Anurag Thakur and Parvesh Verma for their alleged hate speeches over the anti-CAA protest in Delhi in 2020.

While BJP MP Thakur is a former union minister, Verma is a minister in the Delhi government.

In its April 29 verdict on a batch of pleas concerning hate speeches, a bench of Justices Vikram Nath and Sandeep Mehta also dealt with the petition filed by CPI(M) leaders Brinda Karat and K M Tiwari who had challenged a June 2022 verdict of the Delhi High Court.

The high court had dismissed a petition by Karat and Tiwari challenging the trial court's refusal to direct registration of an FIR against Thakur and Verma for their alleged hate speeches over the anti-CAA protest at Delhi's Shaheen Bagh.

In its judgement, the apex court noted that the high court had, on an independent assessment, held that the speeches do not disclose commission of any cognisable offence, and also observed that the statements were not directed against any specific community nor did they incite violence or public disorder.

"Upon a careful consideration of the material placed on record, including the alleged speeches, the status report dated February 26, 2020 submitted before the trial court, and the reasons recorded by the courts below, we are in agreement with the conclusion that no cognisable offence is made out," the top court said.

The CPI(M) leaders had claimed that on January 27, 2020, Thakur allegedly made a hate speech at a rally in Rithala. They had further claimed that on January 28, 2020, Verma allegedly made inflammatory hate speeches.

A trial court on August 26, 2020, dismissed the petitioners' complaint on the ground that it was not sustainable as the requisite sanction from the competent authority was not obtained.

In its verdict, the apex court observed the high court had declined to direct registration of an FIR on the grounds that prior sanction under Sections 196 and 197 of the Code of Criminal Procedure (CrPC) had not been obtained.

The bench said the scheme of erstwhile CrPC does not contemplate any embargo on the direction for registration of an FIR or the conduct of investigation at the pre-cognisance stage.

"To hold otherwise would amount to introducing a restriction not envisaged by the legislature," the top court said, adding, "The requirement of sanction is, therefore, a condition precedent only for taking cognisance and not for the registration of an FIR or for the conduct of investigation". It said any interpretation that makes the registration of an FIR contingent upon prior sanction would invert this statutory scheme and render the provisions relating to investigation unworkable.

It noted that relief sought before the trial court in the case was confined to a direction to the police to register an FIR on the basis of the complaint submitted by the appellants.

The bench said the criminal process is designed to protect both the rights of the accused and the interests of society.

"While the requirement of sanction serves as a safeguard against frivolous or vexatious prosecution at the stage of cognizance, it cannot be permitted to operate as a shield to prevent the very initiation of the investigative process where a cognisable offence is disclosed," it said.

The bench said failure on the part of the authorities to perform their statutory duties at the threshold stage not only defeats the legislative intent but also places the ordinary citizen in a position of vulnerability against institutional inaction.

It said the rule of law mandates that the machinery of investigation be set in motion in accordance with law, uninfluenced by extraneous considerations.

"Accordingly, while we disapprove the reasoning adopted by the high court on the issue of prior sanction, we find no ground to interfere with the ultimate conclusion," the bench said.

In its 125-page verdict on the batch of pleas, the bench said hate speech was "fundamentally antithetical" to the constitutional value of fraternity and strikes at the moral fabric of our republic, but no "legislative vacuum" exists warranting intervention as the existing framework adequately addresses the issue.

Terming as "misconceived" the contention that the field of hate speech remains legislatively unoccupied, the top court said the constitutional scheme, founded upon the doctrine of separation of powers, does not permit the judiciary to create new offences or expand the contours of criminal liability through judicial directions.