Shaheen Bagh: Delhi HC dismisses plea for hate speech FIR against Anurag Thakur, other BJP leaders

Petitions for arrest of BJP leaders for hate speech was concerning anti-CAA protests held at Shaheen Bagh in Delhi

The Delhi High Court on Monday dismissed a plea by CPI(M) leader Brinda Karat and another person to lodge an FIR against Union Minister Anurag Thakur and BJP MP Parvesh Verma for their alleged hate speech - "desh ke gaddaron ko" - exhorting the crowd to shout "goli maron saalon ko" in January, 2020 during the anti Citizenship Amendment Act protests.

A single judge bench of Justice Chandra Dhari Singh also referred to 'Bhagwat Gita' to say the leaders are role models for ordinary masses and owe their responsibility not only towards the electorate but to the society and the nation as a whole and ultimately to the Constitution.

"Hate speeches especially delivered by elected representatives, political and religious leaders...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 and therefore warrant stringent peremptory action on the part of central and state governments," the court said.

In the instant case, the court, however, said a Delhi court has rightly on August 26, 2020 dismissed their plea as there was no valid sanction for prosecution as mandated under the Criminal Procedure Code.

"If such investigations are ordered in routine manner for the offences under Section 295-A, 153-A and Section 505 of the IPC, 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," it said.

The court pointed out the Legislature, being wary of such a situation, in its wisdom has incorporated this two-tier mechanism, firstly, in the form of a sanction and secondly, in the form of a preliminary investigation before granting any sanction for prosecution.

The court also relied upon a status report filed by the Delhi police on February 26, 2020 which stated prima facie no cognisable offence has been found to have been committed and the connotation of the word “gaddar” is traitor, and as such does not target or refer to any specific community.

It also pointed out the petitioner had failed to follow the prescribed mechanism under the Criminal Procedure Code by approaching the revisional court against the trial court's order. "No rights, whether fundamental or legal, of the petitioners stands violated which would have otherwise required the intervention," the bench said.

The court also took note of a "worrying phenomenon that has gained traction and is in vogue these days is of bypassing the procedure under the Code. 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. Therefore, the alternate remedies wherever available must be exhausted, save in exceptional circumstances where the urgent intervention of this court is required in the interest of justice, before approaching this court, the bench added.