IMPORTANT POINTS
Courts have no power to legislate.
The Court should not pass any judicially unmanageable order which is incapable of enforcement.

Headnote:(a) Words and Phrases – Hate speeches – Hate speech is an effort to marginalise individuals based on their membership in a group – Hate speech seeks to delegitimise group members in the eyes of the majority, reducing their social standing and acceptance within society – It rises beyond causing distress to individual group members – It can have a societal impact – It lays the groundwork for later, broad attacks on the vulnerable that can range from discrimination, to ostracism, segregation, deportation, violence and, in the most extreme cases, to genocide – Hate speech also impacts a protected group’s ability to respond to the substantive ideas under debate, thereby placing a serious barrier to their full participation in our democracy. (Para 7)
       2013 SCC 11; (1990) 3 SCR 892; AIR 1988 SC 775 – Relied upon
       (b) Hate speeches – PIL for issuing directions to control – Many Statutes including those of Indian Penal Code, 1860; Protection of Civil Rights Act 1955; Representation of People Act, 1955 and many others provide sufficient and effective remedy for prosecution of the author, who indulge in such activities – Authors of such speeches can be booked under the existing penal law – Law enforcing agencies must ensure that the existing law is not rendered a dead letter – “Salus reipublicae suprema lex” – Safety of the state is the supreme law. (Para 10 to 19, 27)
       AIR 1962 SC 955; AIR 1957 SC 620 – Relied upon
       (c) Constitution of India – Separation of powers – Legislature and Judiciary – Judges can enforce a law, but they cannot create a law and seek to enforce it – Court has no power to legislate – Judicial activism – Sometimes Supreme Court, in order to prevent fraud upon the statutes, or misuse of certain beneficiary provisions by the undeserving persons, depriving the legitimate claims of eligible persons has to issue guidelines/directions –Supreme Court under Article 141 of the Constitution, is not merely the interpreter of the law as existing – Court is by itself a source of law – Law is what the Court says it is – Nevertheless, directions can be issued only when there is a total vacuum in law. (Para 20, 21, 22)
       AIR 1982 SC 149; AIR 1984 SC 802; AIR 1992 SC 96; AIR 1994 SC 268; AIR 1997 SC 3011; (2008) 1 SCC 683; (2008) 5 SCC 511; (1995) 6 SCC 614 – Relied upon
       (d) Administration of Justice – Judicial Review – Judicial restraint – Court should not grant a relief or pass order/direction which is not capable of implementation. (Para 23, 26)
       (2008) 12 SCC 675; AIR 1945 PC 18; AIR 1992 SC 604; (2013) 2 SCC 1 – Relied upon
       343 U.S. 250(1952); 395 U.S. 444 (1969); 112 S. Ct. 2538 (1992) – Referred
       Facts of the case:
       This PIL has been filed or issue appropriate writ, order, decree in the nature of mandamus directing termination of membership of authors of “hate/derogatory speeches” made on the lines of religion, caste, race and place of birth (region) from the Union/State Legislature and other elected bodies etc.
       Finding of the Court:
       The Court should not pass any judicially unmanageable order which is incapable of enforcement.

JUDGMENT : -

B.S. CHAUHAN, J.

1. The instant writ petition has been preferred, by an organisation dedicated to the welfare of inter-state migrants, in the nature of public interest seeking exercise of this court’s extraordinary jurisdiction under Article 32 of the Constitution of India, 1950 (hereinafter referred to as the ‘Constitution’) to remedy the concerns that have arisen because of “hate speeches”, through the following prayers:

a. Issue appropriate writ, order, decree in the nature of mandamus declaring hate/derogatory speeches made by people representatives/political/religious leaders on religion, caste, region and ethnic lines are violative of Articles 14 (Equality before Law), 15 (Prohibition of discrimination on grounds of religion, race, caste or place of birth), 16 (Equality in matters of public employment), 19 (Protection of certain rights regarding freedom of speech etc.), 21 (Protection of Life and Personal Liberty) of Fundamental Rights read with Article 38 of the Directive Principles of State Policy and Fundamental Duties under Article 51-A(a), (b), (c), (e), (f), (i) & (j) of the Constitution and merits stringent pre-emptory action on part of the Central and State governments;

b. Issue appropriate writ, order, decree in the nature of mandamus declaring hate/derogatory speeches made on the lines of religion, caste, race and place of birth (region) to be an act against the Union of India which undermines the unity and integrity of the country and militates against non- discrimination and fraternity;

c. Issue appropriate writ, order, decree in the nature of mandamus declaring that “Fraternity” forms part of “Basic Structure” of the Constitution;

d. Issue appropriate writ, order, decree in the nature of mandamus directing mandatory suo motu registration of FIR against authors of hate/derogatory speeches made on the lines of religion, caste, race and place of birth (region) by the Union and State Governments, in the alternative, constitution of a committee by the Union of India in consultation with this Court for taking cognizance of hate/derogatory speeches delivered within the territory of India with the power to recommend initiation of criminal proceeding against the authors;

e. Issue appropriate writ, order, decree in the nature of mandamus directing mandatory imposition of “gag order” restraining the author of hate/derogatory speeches made on the lines of religion, caste, race and place of birth (region) from addressing the public anywhere within the territory of India till the disposal of the criminal proceeding initiated against him as a necessary pre-condition for grant of bail by the Magistrate;

f. Issue appropriate writ, order, decree in the nature of mandamus directing speedy disposal of criminal proceedings against authors of hate/derogatory speeches made on the lines of religion, caste, race and place of birth (region) within a period of 6 months;

g. Issue appropriate writ, order, decree in the nature of mandamus directing suspension of membership of authors of hate/derogatory speeches made on the lines of religion, caste, race and place of birth (region) from the Union/State Legislature and other elected bodies till the final disposal of the criminal proceedings;

h. Issue appropriate writ, order, decree in the nature of mandamus directing termination of membership of authors of hate/derogatory speech made on the lines of religion, caste, race and place of birth (region) from the Union/State Legislature and other elected bodies if found guilty;

i. Issue appropriate writ, order, decree in the nature of mandamus directing de-recognition of the political party of authors of hate/derogatory speech made on the lines of religion, caste, race and place of birth (region) by the Election Commission of India where the author is heading the political party in exercise of power vested inter-alia under

Article 324 of the Constitution read with Sections 29A(5), 123(3) of the Representation of the People Act, 1951 and Secti

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2014 Supreme(SC) 201

SUPREME COURT OF INDIADr. B.S. CHAUHAN, M.Y. EQBAL AND A.K. SIKRI, JJ.Pravasi Bhalai Sangathan – Petitioner VERSUSUnion of India & Ors. – Respondents WRIT PETITION (C) No. 157 OF 2013Decided On : March 12, 2014.

IMPORTANT POINTSCourts have no power to legislate.The Court should not pass any judicially unmanageable order which is incapable of enforcement.

Cases Referred (15)

SUPREME COURT OF INDIA
Dr. B.S. CHAUHAN, M.Y. EQBAL AND A.K. SIKRI, JJ.
Pravasi Bhalai Sangathan – Petitioner
VERSUS
Union of India & Ors. – Respondents
WRIT PETITION (C) No. 157 OF 2013
Decided On : March 12, 2014.

IMPORTANT POINTS
Courts have no power to legislate.
The Court should not pass any judicially unmanageable order which is incapable of enforcement.