The Delhi High Court on Wednesday, 26 February, directed Solicitor General Tushar Mehta to advise the Delhi Police Commissioner on lodging of FIRs against alleged hate speech by three BJP leaders in connection with the ongoing communal violence in Delhi.
The bench of Justices S Muralidhar and Talwant Singh instructed Delhi Police to report back at 2:15 pm on Thursday after making a "conscious decision" on the registration of the cases against those who had made speeches provoking violence in the capital – including but not limited to BJP leaders Kapil Mishra, Parvesh Verma and Anurag Thakur – keeping in mind the Supreme Court’s Lalita Kumari judgment.
However, the court’s directions have been thrown into jeopardy after the case was listed before a different bench on Thursday, 27 February.
The Solicitor General had urged the court to not make any decision on the registration of FIRs itself and leave this to the police – or at least wait till proper responses could be received by him from the authorities concerned.
In his view, the police would take action at an appropriate stage, and the court should not become the police department and issue instructions to them.
"What is the appropriate stage? After the city has burnt?" asked an anguished Justice Muralidhar in response.
The judges noted, after confirmation from the police, that while no FIRs had been registered against the likes of Thakur (who made a provocative speech on 27 January) for speeches made several weeks before, 11 FIRs had been registered relating to the ongoing violence in Delhi.
"You showed alacrity in lodging FIRs for arson, why aren't you showing the same for registering FIR for these speeches?" the bench asked.
The judges were hearing a petition filed by activist Harsh Mander seeking the lodging of FIRs against Mishra, Verma, Thakur and others who have made inflammatory speeches, which he alleges instigated the ongoing communal violence in parts of northeast Delhi over the Citizenship (Amendment) Act.
The petition has also asked for a Special Investigation Team headed by a retired judge to inquire into the violence, compensation for deceased and injured persons, and the deployment of the army to quell the violence and restore law and order.
In light of the orders passed by Justices Muralidhar and Anup Bhambhani on emergency services and police protection for the same, the high court decided that they would restrict themselves at this time to the question of whether FIRs need to be registered for hate speech and instigation of violence.
While Justices Muralidhar and Singh ordered the case to be listed before them again at 2:15 pm on Thursday, the new causelist for Thursday shows that the matter has been listed before Delhi HC Chief Justice DN Patel instead of them.
Part 1: ‘Amazed at the State of Affairs of Delhi Police’
Mander’s petition was originally scheduled to be heard by Chief Justice DN Patel on an urgent basis on Wednesday. However, as he was not present in court for the day, Mander’s lawyer, senior advocate Colin Gonsalves, mentioned the matter before Justice Muralidhar (as the next most senior judge present) in the morning.
Justice Muralidhar agreed to take up the matter and issued notice to the Delhi government and police. The matter was scheduled to be heard at 12:30 pm.
When the hearings began, there was some confusion over who had authority to represent the Delhi authorities. Solicitor General Tushar Mehta claimed that he had been instructed by the Lieutenant Governor to represent Delhi Police, which was opposed by the Delhi government’s standing counsel Rahul Mehra, who said the Delhi cabinet had not advised the L-G to do this.
The judges nevertheless decided to hear the Solicitor General’s views on the case, and asked him why he opposed the petition.
Mehta said that there was no urgency for the court to deal with the requests made by Mander, including his request for FIRs to be registered against Mishra, Verma and Thakur. He said the case could wait till Thursday, by when he would get further instructions.
He also said the statements by BJP leaders Verma and Thakur were made several days back and it was not urgent to be heard today. The court observed, "Does that not make it even more urgent. When the commissioner was made aware of such statements, does he need someone to approach him to take action. As a law officer you answer whether this prayer (for lodging FIRs against three BJP leaders) is not urgent."
When the judges asked if he had seen the videos of the speeches by the three leaders, the Solicitor General said he had not. The DCP (Crime Branch) Rajesh Deo, the senior police officer present, was then asked if the police had seen the videos.
He said that while he had perhaps seen the videos of Parvesh Verma and Anurag Thakur’s speeches, he had not seen the speech made by Kapil Mishra at Maujpur on Sunday, 23 February, in which he openly said protesters in the area would be forcibly moved after Donald Trump’s visit to India was over, and that he wouldn’t listen if the police told him to stop.
“Are you saying even the Commissioner of Police has not seen the video?” the judges asked incredulously. Justice Muralidhar said that he was “amazed at the state of affairs of the Delhi Police” and ordered the video to be played for the police officers and the Solicitor General immediately in court.
Following this, the judges gave Mehta and the police till 2:30 pm to take a view on whether Mishra’s speech was provocative and warranted the registration of an FIR. and the court rose.
Part 2: ‘As a Constitutional Court, We Cannot be Blind’
After a hearing on a separate petition by actor Rahul Roy, who’d approached the high court late in the night for ensuring ambulances and emergency services were able to help those affected in the violence, the court resumed hearing Mander’s petition on the FIR question at around 3 pm.
Solicitor General Mehta came back and informed the court that it was not advisable to make a decision on the registration of an FIR immediately, as doing so could aggravate the ongoing situation in the capital. Instead, he said, the police would make a decision on registration of the FIR at an appropriate stage.
Standing counsel Rahul Mehra disagreed, saying the Delhi cabinet had not advised the L-G to appoint Mehta to appear in this case, so he didn’t have the authority to make this decision. He said an FIR should be registered on the basis of the speeches, which could then be cancelled if it turned out after investigation that an offence couldn’t be proved.
COGNISABLE OFFENCES AND THE LALITA KUMARI TEST
Senior advocate Colin Gonsalves, representing Mander, was then asked to explain why they were arguing that an FIR was needed over the speeches. Gonsalves played the videos and read out the transcripts of Anurag Thakur and Parvesh Verma’s provocative comments, as well as a more recent video of newly elected MLA Abhay Verma in Laxmi Nagar.
He said these comments should ideally be considered incitement to commit murder, but even if they weren’t, at any rate they constituted offences under provisions of the IPC dealing with the incitement of hatred between communities, including Sections 153A, 295 and 295A.
Justice Muralidhar pointed that the question to examine here was whether the Supreme Court’s Lalita Kumari judgment applied. Gonsalves agreed and read from the judgment, which says that if police receive information which discloses a cognisable offence, then they have to register an FIR, and cannot delay this by saying they need to first undertake a preliminary inquiry.
Gonsalves said that the provisions identified by him as potentially applicable to the speeches were cognisable, and so the police should have already registered an FIR. He then suggested that the court needed to consider making a strong statement to the police and the public, “that no matter how high a politician you are, you can't get away with hate speech.”
FIERY EXCHANGE BETWEEN SOLICITOR GENERAL AND JUSTICE MURALIDHAR
It was after this that the court was witness to a remarkable exchange between the Solicitor General and Justice Muralidhar.
The S-G cried foul about Mander’s petition, asking how he had selected just these three supposedly provocative speeches. He said there were many inflammatory speeches made by other people as well, which also disclosed cognisable offences, and so Mander needed to explain why he had only singled out these petitions.
A random lawyer in the court had previously raised the issue of speeches by Waris Pathan and Asaduddin Owaisi (which had not, however, been made in Delhi, and regarding which FIRs had already been registered), and Mehta took up a similar line of argument.
“What you are saying shows the police in even worse light,” Justice Muralidhar pointed out. “You are saying the police not only failed to take action in these three clips but many more clips as well!”
Mehta responded that the police was considering what to do, and that an FIR would be registered “at an appropriate stage.” It was to this that Justice Muralidhar asked "What is the appropriate stage? After the city has burnt down?"
He said that the court had a duty to protect the life and liberty of citizens., and that “as a constitutional court, we cannot be blind.” This was why, he argued, the court needed to go into the question of whether the FIRs should be registered or not, given the loss of lives in Delhi. "How many more lives must be lost?"
The Solicitor General objected to these words, saying there should be no sensationalism in this case, to which Justice Muralidhar replied that the loss of life was a fact. As there was a possible link between the provocative speeches and the violence, an investigation was required, for which an FIR was a prerequisite.
Mehta reiterated that the police was looking into it all, and could register the FIR when the situation was ‘conducive’ to do so.
“If you fail to take action, that conducive situation will not emerge,” Justice Muralidhar countered. In response to Mehta’s protestations that the judge was getting angry with him, he replied that the court was not demonstrating anger but anguish. “I hope this anguish is acknowledged, Mr Mehta,” he added.
“We do not need a repeat of 1984,” the judge asserted, reiterating a sentiment he’d expressed at the previous emergency services case as well.
Following a brief interaction with DCP (Crime Branch) Rajesh Deo over the FIRs already registered in relation to the Delhi violence, the court then asked them to take the advice of Solicitor General Mehta and make a “conscious decision” about why they should or should not register cases against the BJP leaders and any others who had made inflammatory speeches.
It is unclear now, however, whether Chief Justice Patel will ask for compliance with the directions of Justice Muralidhar and Justice Talwant Singh, or whether he will hear arguments afresh.