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Supreme Court dissatisfied with Delhi Police probe, asks for better affidavit in hate speech case

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The Supreme Court bench of Justices A.M. Khanwilkar and Abhay S. Oka has granted two weeks time Delhi Police to file a better affidavit with regard to the “hate speech” that was made at Govindpuri in December 19 last year.

The bench has recorded in its order, “The writ petition 24 of 2022, at the outset Mr Sibal invited our attention to this extract to two public speech. And the enquiry report of the sub inspector in the counter. The inquiry officer, sub inspector PS Okhla Industrial Area dated 24 Match 2022 at page 21 of the counter affidavit and also at para 5.5 of the counter affidavit filed by the deputy commissioner of police reiterating the same position. The backdrop of this submission, ld. ASG requests for time to get instructions from the appropriate authorities and file a better affidavit. He requests for 2 weeks time for it. List this matter on 9th may 2022 for further consideration. Better affidavits filed on or before 4th may, 2022.

As regards to IA no. 61197 it is stated that Mr Sibal that standing counsel of state Himachal Pradesh has been duly served. However, his appearance is not notified in the list. Ensure that his name is entered in the list on NDOH.”

Senior Advocate Kapil Sibal reads out the speech at Hindu Yuva Vahini event.

Bench asked, is this regarding NCT of Delhi or Uttarakhand Govt?

Sibal replied, Delhi govt. That’s the conclusion. From our side, there are two govts in this writ petition. delhi police has been impleaded as a respondent and…

Bench this writ petition is for Uttrakhand. Delhi gpvt is not party here.

Sibal responds, Delhi govt is resp no. 2

Bench says alright, that is commissioner of police.

Sibal, yes and he says he has conducted an inquiry which my lordship will find in the counter. In this in para 2 at page 21, he justifies that it is seen that the persons gathered to save ethics of their community is the response. He states on internal page 21 para 2… We have conducted the inquiry and this is what we have received

The inquiry into the matter has been conducted with respect to the hate speech delivered at varanasi the auditorium situated in govindpuri delhi. The video link provided by the complainant will be scrutinized opened and seen. Upon Careful analysis observational video attached with the complaint. No such words as been mentioned in the complaint have been heard. There are no such words. After viewing, listening to the video it is seen that the person gathered have saved ethics of their community.

We have given a translation in our rejoinder.

Lordship may fix this and tell what ethics are. Constitutionally, what the ethics are in these matters.

Bench – please read the portion you wanted to read

Sibal- this is the rejoinder. They have set out a table. Page no 5 . Your lordship may read it, i don’t want to read it openly in the court.

Bench – it’s referring to the same…

Sibal – yes, same ….It’s the same thing

Bench – it is referring to the same incident?

Delhi Police – we have file a counter…

Bench – now this is a document you have annexed coming to page 21. This is your Annexure. What is your inquiry outcome?

Delhi Police- thats in para 3.4 of the counter.

Bench – not in this document?

Delhi Police – not this document

Bench – what is this document then? You have annexed it

Delhi Police- this is the enquiry report.

Sibal – they have said the same thing in para 5.5 in the grounds and repeated it at page 8 of their counter. This is the same thing as the IO reported.

Bench- who has verified it? Sone superior officer has seen it? And applied his mind? This stand can be taken on affidavit and before the court…

State of a Uttarakhand counsel- I appear on behalf of state of uttrakhand.

Bench – no no, we are now on delhi commissioner. We will come to uttrakhand, it’s seperate whole together. Now this affidavit has been filed by deputy commissioner of police? He accepts this position? Or he has reproduced only what has been stated in the report? That is his understanding or the report’s content? What is instructed in para 5.5. we want to understand from you that the affidavit filed before us by deputy commissioner of police, a Senior Officer and hope that he understands the grievances. If he has clearly reproduced the report in para 5.5 we can understand but he is accepting it as correct finding or you need to have relook on the whole matter. We want to understand that para5.5 is just a reproduction of the report of a sub-inspector level officer or it is your Stand as well? The we have to ask commissioner of police himself to look into it.

Delhi Police- we will verify it sir.

Bench – so this is delhi…

Sibal – kindly come to… There is an IA 61197/2022 FILED ON 21st of april, and before my ld. friend comes to that IA…

State of a Uttarakhand – I have filed a status report where it’s pointed out that as far as uttrakhand is concerned there are 4 FIRs which we have registered on hate speeches etc, in that 3 of those cases, one is under investigation by a special investigation team. 6 officers have been deputed because dharam was an issue and rival statements were made. Not only by the hindu community but muslim community…

Bench – let’s not get unto that…

State of a Uttarakhand – just a min

Sibal – I’m not even raising this matter. There is no application for that at the moment.

I’m not arguing that matter.

Bench – why are you so anxious mister?

State of a Uttarakhand – the anxiety is that the petitioner what he is saying, elections are about to be held.

Bench – somebody is making remark of event happening in that particular state, then you respond. Has the issue raised about your state uttrakhand? Just wait, let him make comment then you respond to that.

State of a Uttarakhand – my anxiety is only this much…

Bench – don’t show your anxiety here..

State of a Uttarakhand – first allegation was made against uttrakhand. When we filed a status report, it goes to another state.

Bench – doesn’t matter, he is entitled to have his way. We have to control proceedings. We know how to do it… He has only raised delhi which we have looked into and they need more time to understand/verify and file better affidavits.

Who is appearing for himachal? Has the standing counsel been served?

Sibal – yes served, This is far more serious. Kindly just look at page 8. In the office report it is stated that he has been served.

Bench – does the list mention appearance of advocate otherwise he will miss it. Who is appearing for himachal? You have served whom?

Sibal – Abhinav Mukerji, standing counsel

anyways, your lordship…

Bench – we will listen to it seperately…

Background

Through its Counter affidavit, the Delhi police told the Supreme Court that the speeches made at the Hindu Yuva Vahini event held at Delhi in December 2021 didn’t disclose any hate words against any particular community.

The Delhi police has filed its affidavit in a PIL, seeking Courts intervention in the matter pertaining to hate speeches delivered in December last year in Haridwar by one Yati Narsinghanand and the other in Delhi by Hindu Yuva Vahini.

After carrying out a preliminary inquiry by the Police and after examining video link and attached video in respect of hate speech delivered at Delhi, police found that no such words as mentioned by the complainant in his complaint have been used.

There is no use of such words, which mean or could be interpreted as “open calls for genocide of Muslim in order to achieve ethnic cleansing or an open call for murder of an entire community in the speech.

“After completion of the enquiry into the complaints , the inquiry officer submitted the enquiry report on 24.03.2022 closing all the complaints after evaluation of the alleged video clip , it was concluded that the alleged speech did not disclose any hate words against a particular community as alleged or otherwise. Bare perusal of the complaints made, the statement, which are alleged to be offensive, would divulge that there are no specific words against a particular community or against any community that were uttered by the gathering or any other person in that event,” the affidavit states.

It is mentioned that none of the words which were spoken during the events in any manner whatsoever overtly and explicitly described Indian Muslims as usurpers of territory , and as predators of land , livelihoods and of Hindu women , and nothing was said or done which could create an environment of paranoia amongst any religion , cast or creed . That tape basis and made by the police authorities are hand in glove with perpetrators of communal hate are baseless , imaginary and has no whatsoever , as the instant case is based on video evidence , there is hardly any scope on the part of investigation agencies to temper with the evidence or hamper the investigation in any manner. Since the video clip in its entirety was taken , there was no hate speech against any particular section of the society or the community.

The Delhi Police highlighted that the Apex Court has time and again reiterated that commitment to freedom of expression demands that it cannot be suppressed unless the situations created by allowing the freedom are pressing and the community interest is endangered . The anticipated danger should not be remote, conjectural or farfetched. It should have a proximate and direct nexus with the expression. The expression of thought should be intrinsically dangerous to the public interest which is not the case in instant matter.

“That Justice Holmes for a unanimous court evolved the test of ”clear and present danger”. He used the danger test to determine where the discussion ends and incitement or attempt begins, but here in the present case the speech does not disclose any such aim to incite caste, language and communal fanaticism as alleged or otherwise, nor the same has resulted in any action has been taken in furtherance of any such incitement,” the affidavit reads.

The PIL has been filed by journalist Qurban Ali and former Judge of Patna High Court and Supreme Court Senior Advocate Anjana Prakash.

The Petitioners referred to the case of Pravasi Bhalai Sangathan v. Union of India (2014) 11 SCC 477, and submitted that the Apex Court has recognised ‘hate speech’ as a violation of Articles 14, 15 and 21 of the Constitution.

Between December 17 and 19, 2021 at two separate events organised in Delhi and Haridwar, hate speeches were made by a group of people calling for genocide of members of the Muslim community. The Uttarakhand Police had filed an FIR on 23.12.20221 under Section 153A and 295A of the IPC against 5 people, namely Wasim Rizvi, Sant Dharamdas Maharaj, Sadhvi Annapoorna alias Pooja Shakun Pandey, Yati Narsinghanand and Sagar Sindhu Maharaj.

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