Thread by @LiveLawIndia

#SupremeCourt to hear petition filed by CPI(M) leader Brinda Karat, seeking registration of FIR against BJP leaders Anurag Thakur & Parvesh Verma for alleged hate speeches in 2020

Matter taken.

Sr Adv Siddharth Agarwal for Brinda Karat - These pertain to speeches made during election rallies in 2020. They constitute hate speech. ECI had taken action against them.

#SupremeCourt #HateSpeech

Agarwal : The Delhi HC in a collateral proceeding commented adversely on these two gentlemen. But when I moved the Magistrate, the Magistrate refused to register FIR saying no sanction has been obtained.

Agarwal : The judgment relied on by the Magistrate is in the context of PC Act. It has no application to IPC offences. Sanction not needed for FIR. Courts below has completely erred. We are three years down the line and no FIR has been registered yet.

#SupremeCourt #HateSpeech

Justice KM Joseph : HC proceeds on whether writ petition is the appropriate remedy or a revision..

#SupremeCourt #HateSpeech

Agarwal : The statement was goli maaro saloo ko, desh ke gaddaron ko....

J Joseph : The point is 153A goes into two classes. There has to be two classes.

#SupremeCourt #HateSpeech

Agarwal : It was not merely an issue of setting aside magistrate's order. It was also a matter of laying down some guidelines as to how such a matter has to be dealt with, which only a writ can do.

#SupremeCourt #HateSpeech

Agarwal : It is well settled that alternate remedy does not impinge on the powers of the High Court. Had the HC relegated it to the initial stage, it would have been a different issue.
#SupremeCourt #HateSpeech

Agarwal : On the issue of status report- this is an election rally. It refers to a dharna at Shaheenbagh by the members of a particular community and the exhortation of "traitors" was in the context of that particular group.

#SupremeCourt #HateSpeech

J Joseph : But protest group is secular.

Agarwal : The issue was raised in the context of CAA. The basis of somebody believing CAA is not right was on the ground of religion. Though the protest group is secular, the underlying context is religious segregation.
#SupremeCourt

Agarwal refers to interview given - that if the party is elected, all illegal mosques will be removed.

Agarwal says he does not want to read out aloud the remaining sentences as they are "ex-facie hate speech".

#SupremeCourt

Agarwal mentions that Election Commission had taken action against both the persons and barred them from campaigning for certain amount of hours.

#SupremeCourt #SupremeCourtOfIndia

Justice Joseph asks about when the complaint was filed.

On 29 Jan 2020 itself is the first complaint, Agarwal says.

#SupremeCourt

Agarwal : In January, one person actually went and shot at the protesters, in furtherance of the statements of the accused.

#SupremeCourt #SupremeCourtofIndia #HateSpeech

Agarwal refers to the order passed by the Supreme Court last year which says that police should take suo motu action on hate speech cases without waiting for any complaint.

livelaw.in/top-stories/ta…

J Joseph asks about the status report filed by the Delhi Police, which concluded that no offence is made out against the accused.

#SupremeCourt

Agarwal : The learned Magistrate did not actually accept the status report though he misdirected himself into a legal issue regarding sanction.

#SupremeCourt #SupremeCourtOfIndia

Justice Joseph : If any person makes a statement "goli maaro", will it be an offence for anyone to say to kill the traitors irrespective of religion. Will it be a cognizable offence in its own right if I say let's kill them?

#SupremeCourt #SupremeCourtOfIndia

Justice Joseph : Indian Penal Code allows violence only in private defence. If you say that "goli maroo", irrespective of 153A, are there other provisions?

#SupremeCourt #SupremeCourtOfIndia

Agarwal says it will be "abetment". Refers to Section 107 IPC. Abetment by instigating people is an offence. What this statement does is to instigate people to shoot down people who they think are traitors.

#SupremeCourt #SupremeCourtOfIndia

Agarwal : Section 111 IPC says even if the instigation does not translate into action, then also it will be offence.

#SupremeCourt #SupremeCourtOfIndia

Agarwal : It need not be that the speech is religious. 153A requires promotion of enmity on grounds of religion or any other ground feelings of disharmony. Let's assume it is not communal statement. But if the statement is that those oppose CAA are traitors, it will be under 153A

Agarwal : Even if it is not 153A or 153B, if the exhortation is an instigation, and even if the instigation does not lead to final act- though on the next day one gentleman picks up a gun and shoots at the crown- it will be an offence.

#SupremeCourt #SupremeCourtOfIndia

Agarwal : It requires investigation, whether the statement is communal, what are the overtones etc....for 3 years there has been no investigation.

#SupremeCourt #SupremeCourtOfIndia

Justice Joseph : The stand of the Magistrate that sanction is required appears to be not correct.

#SupremeCourt #SupremeCourtOfIndia

Justice Joseph : The need for sanction in respect of offences affecting public tranquility is that..with time, certain incidents heal and the prosecution might be opening old wounds...

#SupremeCourt #SupremeCourtOfIndia

Agarwal : Wounds will not heal if the investigation is one-sided. If investigation is only against one group and not against the other, it will be a travesty of justice.

#SupremeCourt #SupremeCourtOfIndia

Bench issues notice on the petition.

#SupremeCourt #SupremeCourtOfIndia

Notice returnable within three weeks.

#SupremeCourt #SupremeCourtOfIndia