On Monday, Chief Justice of India SA Bobde expressed the Supreme Court’s helplessness in preventing communal violence. Hearing a petition filed by activist Harsh Mander, seeking the registration of first information reports against ruling Bharatiya Janata Party leaders who delivered hate speeches that fuelled the worst communal riots in four decades in Delhi last week, Justice Bobde said courts have never been able to stop “such things.”
“We would wish peace, but there are certain limitations on our power,” he said. “The height of pressure on us, you should know. We can’t handle that.”
The observation created an immediate stir. While it is true that ensuring public order is the job of the executive, the judiciary can certainly step in and pull up the state for failing to contain riots. The Supreme Court cannot wash its hands off in a situation where the state either fails to act or is complicit with those stoking hate and violence.
Mander’s petition presents an opportunity for the Supreme Court to showcase its seriousness in not tolerating disturbances to public order. After all, the speeches and slogans raised by the BJP satisfy the legal test laid down by the court itself on what constitutes a hate speech offence.
Anatomy of a hate slogan
At the heart of the petition is a plea for accountability: Mander wants the court to direct the police to file FIRs against BJP leaders ranging from Union minister Anurag Thakur to Lok Sabha MP Pravesh Verma, Delhi MLA Abhay Verma and most of all, failed MLA candidate Kapil Mishra.
Ever since the Citizenship Amendment Act was passed by Parliament in December, widespread protests have exploded across the country. The amended law provides a fast track route for undocumented migrants from Pakistan, Bangladesh and Afghanistan, barring Muslims, to obtain Indian citizenship. Muslims in India fear the law could be used in conjunction with a future National Register of Citizens to disenfranchise them, as Home Minister Amit Shah repeatedly implied last year. The law is currently under challenge before the Supreme Court.
The response of BJP leaders to the protests has been twofold. On the one hand, the Union government refuses to engage with the concerns and anxieties of protestors. Prime Minister Narendra Modi and Union Home Minister Amit Shah have doubled down on their position that the amended citizenship law does not affect Indian Muslims. They have also said no decision has been taken yet on a nationwide NRC – even though the first step of the process has already been set into motion in the form of the National Population Register.
Secondly, in response to the ground protests, BJP leaders have unleashed a divisive campaign targeting the protestors, most of whom are Muslims. This has taken the shape of relentless hate speeches and dog-whistle slogans.
The most polarising of these slogans, which has become no less than a war-cry, is “Desh ki gaddaron ko, goli maaro saalon ko” – “Shoot the bloody traitors”. While the slogan is not new, it has rarely been used with such menace as the BJP has done since December. The aim appears to be discrediting those opposing the Modi government’s citizenship moves. With most protestors Muslim, the slogan has become an anti-Muslim chant, used by the BJP to deepen social polarisation in the city.
The first reported instance of its use in Delhi was on December 20 when BJP leader Kapil Mishra led a pro-CAA march in which he shouted the slogan. The party, instead of punishing him for vitiating the communal atmosphere, gave him a ticket to contest the February 2020 Delhi Assembly elections.
On January 26, at an election meeting, Union Minister of State for Finance Anurag Thakur asked a crowd of BJP supporters what should be done with traitors. “Desh ke gaddaron ko...” he said. The crowd responded: “Goli maaron saalon ko.”
Neither of these two leaders were booked for their speeches.
Failure of the court
Even after the Delhi elections were over, the slogan’s use continued.
On February 23, in the presence of a Delhi Police officer, Kapil Mishra threatened to evict anti-CAA protesters who had occupied a road in Jaffrabad, if the police failed to do so in three days. Soon after, clashes broke out between CAA supporters and protestors, followed by large-scale mob violence that has claimed 47 lives.
The Delhi Police, which failed miserably to control the riots, defended the use of the slogan before a magisterial court. It claimed that the slogan did not target any one section and no cognisable offence was made out in the speeches.
But the Delhi High Court did not accept the argument: on February 26, a bench led by Justice S Muralidhar made the police watch the video clips of the speeches in the courtroom and gave it a day to decide on the necessary action against the BJP leaders. The same evening, the Modi government notified Justice Muralidhar’s transfer to Chandigarh with immediate effect.
The new bench of Chief Justice D N Patel and Justice C Hari Shankar which heard the matter on February 27 adjourned the petition by six weeks after government lawyers told the court the situation was not conducive to register cases immediately. The court’s decision was surprising: criminal action cannot wait for a conducive situation.
Hate speech and courts
Mander’s petition that came up before the Supreme Court on Monday was an appeal against the Delhi High Court decision to defer the hearing on the hate speeches by six weeks. The Supreme Court will now take up the matter on Wednesday.
The hate speeches satisfy the legal test laid down by the Supreme Court on what constitutes an offence under Section 153 and 153A of the Indian Penal Code. These sections punish those “wantonly giving provocation with intent to cause riot” and “promoting enmity between different groups..and doing acts prejudicial to maintenance of harmony”.
A fundamental rule for invoking these hate speech laws is that there must exist on part of the accused what is known as “mens rea”, or “the intention or knowledge of wrongdoing that constitutes part of a crime.”
To attract the provisions, three ingredients should be present: the act must be illegal; such illegal act must be malignantly done; and as a result of such illegal action, there must be a situation which may cause, or has caused, a riot.
The hate speeches delivered by BJP leaders contributed to the widespread violence in North East Delhi – which establishes the nexus between the speeches and the violence.
Given this context, the failure of the police to register first information reports and arrest those who gave the hate speeches has to be construed as a failure of the criminal justice system itself, something the courts cannot afford to turn blind to.
Even after Delhi has been ravaged by communal violence, the “shoot the bloody traitors” slogan continues to be invoked in public without any consequence for those who use it. On February 25, it was heard at a rally led by BJP MLA Abhay Verma, not far from where the communal violence had erupted the previous day.
Over the weekend, it was heard in New Delhi’s Rajiv Chowk metro station and on the streets of Connaught Place, the heart of the city.
While the Supreme Court may not have been in a position to stop the use of the incendiary slogan in the initial instances, given that its use satisfies the test for hate speech, it is important that the court acts against such slogans and creates a deterrent.
The least the court can do is push back against the attempts to normalise the slogan and other forms of hate speech that target a religious minority.
If the court ensures the prosecution of those who used the slogan, not only will this put the fear of law in groups that seek to fan communal fires, it will also send a message to those affected by the violence that there exists an institution that they could count on even if the government does not come to their aide.