A test case in Supreme Court

The Supreme Court is set to hear three petitions seeking its intervention to prosecute `hate' speakers and render justice to the victims of communalism in Gujarat.

in New Delhi

THE Bharatiya Janata Party's return to power in Gujarat in the December 2002 Assembly elections thanks to its vicious communal campaign following the State-sponsored pogrom against Muslims left many to wonder whether there are any legal remedies to bring to book those guilty of indulging in communalism. The belief in the merits of judicial intervention inspired a few eminent citizens to seek remedy in the Supreme Court through public interest litigation (PIL). A Bench comprising Justices R.C. Lahoti and Brijesh Kumar took up one such petition for preliminary hearing on February 3, and directed the court registry to place at its next hearing two similar petitions seeking proper investigation into the riots and action against the guilty officials.

In the petition heard on February 3, Alyque Padamsee, B.G. Verghese, Kuldip Nayar, Valjibhai H. Patel, and Teesta Setalwad sought the issue of directions to the Senior Inspector of Police, Azad Maidan Police Station, Mumbai, to register their complaints under Sections 153A, 153B and 505 of the Indian Penal Code (IPC) against Gujarat Chief Minister Narendra Modi and Vishwa Hindu Parishad president Ashok Singhal, conduct investigations if a prima facie case is made out, and obtain the necessary sanctions for prosecution.

The complaints against Modi and Singhal were based on two communal speeches made by them and reported by the media. At a large public gathering at Shivala Bhaiyan temple in Amritsar on September 4, 2002, Singhal said: "People say that I praise Gujarat. Yes I do. Gujarat has been a successful experiment. Godhra happened on February 27 and the next day, 50 lakh Hindus were on the streets. We were successful in our experiment of raising Hindu consciousness, which will be repeated all over the country now."

The petitioners alleged that this portion of Singhal's speech was intended to create hatred, ill-will and enmity between Hindus and Muslims, and would disturb the public tranquillity. By commending the riots in Gujarat, which took the lives of about a thousand Muslim citizens, he encouraged the further destruction of Muslim lives and property, they alleged. They also accused Singhal of propagating and asserting that Muslims be denied or deprived of their rights as citizens of India.

Modi made his objectionable speech on September 9, during his Gaurav Yatra, at Becharaji in Gujarat. Modi made the following statements, which the petitioners alleged, posed a grave threat to the peace, unity and integrity of India:

* "I told them (the Congress) I got the Narmada water in the month of Shravan, if they had it their way... they would have got it in Ramzan."

* "What should we do? Run relief camps for them? Do we want to open baby-producing centres?"

* Rewriting the family planning slogan as `Hum paanch aur hamaare pachchis', he said: "Gujarat has not been able to control its growing population and poor people have not been able to get money, food... reason being the long queue of children who fix punctures in tyres."

* "In order to progress, every child born in Gujarat needs education, manners and employment... that is the economy we need... and for this we will have to teach a lesson to those who are increasing the population at an alarming rate."

The petitioners alleged that Modi's call to `teach a lesson' to Muslims (whom he alluded as responsible for increasing the population at an alarming rate) would militate against any hope of communal harmony, given the recent carnage that enveloped the State. As Modi is the Chief Minister, the effect of his statements on public tranquillity would be dangerous, they suggested. His threat to close the relief camps would amount to a call to deprive Muslim citizens in these camps of their rights, they argued.

In particular, the petitioners accused both Modi and Singhal of violating Sections 153-A, 153-B, and 505 of the IPC. Under Section 153-A, whoever commits any act which is prejudicial to the maintenance of harmony between different religious, racial, linguistic or regional groups or castes or communities and which disturbs or is likely to disturb the public tranquillity, shall be punished with imprisonment up to three years, or with fine or with both. Section 153-B imposes the same punishment on anyone who asserts, counsels, advises or propagates that any class of persons, by reason of their being members of any religious, racial, linguistic or regional group or caste or community, be denied their citizenship rights. Section 505 also prescribes similar punishment for anyone making or spreading any statement or rumour with the intent to cause fear to any section of public, or to incite one community against another.

On November 8, 2002, convinced that Modi and Singhal violated these provisions, two public-spirited individuals from Mumbai filed two separate complaints with the Senior Inspector of Police, Azad Maidan Police Station, Mumbai. The complainants argued that they had the duty to uphold the Constitution as laid down under Article 52, and as secularism constituted the basic structure of the Constitution in terms of the Supreme Court's declaration, the alleged speeches of Modi and Singhal attacked that very fabric. As the offence was likely to have an all-India impact, it fell within his jurisdiction, they said. They sought the registration of a first information report (FIR) on the basis of their complaint, investigation, and necessary action, including the arrest and prosecution of Modi and Singhal.

Under Section 196(1) of the Code of Criminal Procedure, (CrPC) no court would take cognisance of an offence punishable under Sections 153A and 505(1) of the IPC, except with the sanction of the Central government or the State government. Section 196(1A) of the CrPC makes it mandatory to obtain the sanction of the Central or the State government or the District Magistrate to enable a court to take cognisance of an offence punishable under Sections 153B and 505(2 and 3) of the IPC. Section 197 of the CrPC requires similar sanction for any court to take cognisance of an offence allegedly committed by a public servant, not removable from office except with the sanction of the government, in the discharge of his or her official duty.

Accordingly, two of the petitioners, Padamsee and Teesta Setalvad wrote in November 2002 to the relevant functionaries of the Maharashtra government seeking sanction under Section 196 of the CrPC for the local court to take cognisance of this complaint. They also wrote to the District Magistrate, Mumbai, making a similar request in the case of Singhal. As no action was taken by these authorities, the petitioners approached the Supreme Court for relief.

In their petition, they pointed out that Modi was under oath to uphold secularism. The petition blamed the VHP for the post-February 2002 holocaust in Gujarat and sought its leaders be restrained from making statements of the nature cited in the petition. The refusal to grant sanction under Section 196 of the CrPC for prosecution of Modi and Singhal was arbitrary, and violative of Article 14 of the Constitution, guaranteeing equality before law; it was also likely to violate the fundamental rights of a large number of citizens under Article 21 (protection of Life and Liberty) of the Constitution, they complained.

Section 154 of the CrPC requires the police officer receiving a complaint of cognisable offence to duly record it. The refusal of the Senior Inspector of Police, Azad Maidan Police Station, Mumbai, to do so in the form of an FIR led the petitioners to request the court to direct him to do so and conduct appropriate investigation. They also sought the court's intervention to direct the State government to issue necessary sanction for the prosecution of Modi and Singhal.

The anti-hate speech provisions in the law seek to impose reasonable restrictions on the right to free speech. As the state controls the use of these provisions, it has faced complaints of politicisation in the exercise of this power. The PIL before the Supreme Court will be a test case to determine whether the law can come to the aid of those fighting against the spread of the communal virus.