Hate speech: No cognisable offence against Thakur, Verma, says SC

The Supreme Court has held that no cognisable offence was made out against BJP leaders Anurag Thakur and Parvesh Verma over their alleged hate speeches linked to the 2020 anti-CAA protests in Delhi. While Thakur is a former Union minister, Verma currently serves as a minister in the Delhi government.

In its 29 April verdict on a batch of pleas concerning hate speeches, a bench of Justices Vikram Nath and Sandeep Mehta also considered a petition filed by CPI(M) leaders Brinda Karat and K.M. Tiwari, who had challenged a June 2022 ruling of the Delhi High Court.

The high court had dismissed their plea against a trial court’s refusal to direct registration of an FIR against Thakur and Verma over alleged hate speeches during the anti-CAA (Citizenship Amendment Act) protest at Shaheen Bagh.

In its judgment, the apex court noted that the high court, upon an independent assessment, had found that the speeches did not disclose the commission of any cognisable offence. It also observed that the statements were not directed at any specific community, nor did they incite violence or public disorder.

"Upon a careful consideration of the material placed on record, including the alleged speeches, the status report dated February 26, 2020 submitted before the trial court, and the reasons recorded by the courts below, we are in agreement with the conclusion that no cognisable offence is made out," the top court said.

The CPI(M) leaders had alleged that on 27 January 2020, Thakur delivered a hate speech at a rally in Rithala, and that on 28 January 2020, Verma made inflammatory remarks. A trial court on 26 August 2020 dismissed the complaint, holding that it was not maintainable in the absence of the requisite sanction from the competent authority.

From media reports at the time, it emerged that Thakur delivered a speech at a rally in Rithala in which he raised the slogan, “Desh ke gaddaron ko…”, to which the crowd responded, “...goli maaro saalon ko” (shoot the traitors to the nation). It was also reported that on 28 January 2020, Verma made inflammatory remarks warning that the anti-CAA protesters would “enter homes and rape and kill people”.

In its ruling, the apex court observed that the high court had declined to order registration of an FIR on the grounds that prior sanction under Sections 196 and 197 of the Code of Criminal Procedure (CrPC) had not been obtained.

The bench clarified that the scheme of the erstwhile CrPC does not impose any bar on directing registration of an FIR or conducting an investigation at the pre-cognisance stage.

"To hold otherwise would amount to introducing a restriction not envisaged by the legislature," the top court said. "The requirement of sanction is, therefore, a condition precedent only for taking cognisance and not for the registration of an FIR or for the conduct of investigation".

It further held that making FIR registration contingent on prior sanction would invert the statutory framework and render investigative provisions unworkable. The court noted that the relief sought before the trial court was limited to directing the police to register an FIR based on the complaint filed by the appellants.

The bench underscored that the criminal justice process is designed to protect both the rights of the accused and the interests of society. "While the requirement of sanction serves as a safeguard against frivolous or vexatious prosecution at the stage of cognisance, it cannot be permitted to operate as a shield to prevent the very initiation of the investigative process where a cognisable offence is disclosed," it said.

It added that a failure by authorities to discharge their statutory duties at the threshold stage defeats legislative intent and leaves ordinary citizens vulnerable to institutional inaction.

The court emphasised that the rule of law requires investigative machinery to be set in motion in accordance with law, free from extraneous considerations. "Accordingly, while we disapprove the reasoning adopted by the high court on the issue of prior sanction, we find no ground to interfere with the ultimate conclusion," the bench said.

In its 125-page judgment on the batch of pleas, the court described hate speech as "fundamentally antithetical" to the constitutional value of fraternity and as something that strikes at the moral fabric of the republic. However, it found no "legislative vacuum" warranting intervention, stating that the existing legal framework is adequate.

Rejecting as "misconceived" the argument that hate speech remains legislatively unaddressed, the court held that the constitutional scheme — grounded in the doctrine of separation of powers — does not allow the judiciary to create new offences or expand criminal liability through judicial directions.

With PTI inputs