It was pretty much about who would blink first: Swamy or the bench.
Even as the bench comprising justices Anil R Dave and Adarsh Kumar Goel kept on asking the petitioner, Subramanian Swamy, to first approach the high courts for relief in his challenge to the Indian Penal Code’s hate speech clauses, Swamy insisted that as the previous bench which heard his matter having decided to issue notice confined to the prayers (a) and (b) in his writ petition, the present bench could not go back on it.
In Writ Petition (Criminal) No.69/2015, Swamy has challenged the non-bailable warrants issued against him by a court at Karimganj in Assam over his controversial comments made to an audience at Kaziranga university, Jorhat, Assam, on 15 March last year that in Saudi Arabia, unused mosques are not used for worship.
Among other things, Swamy said, he had “stated simply that Islam permits such demolition and indeed such demolitions do take place in countries such as Saudi Arabia, Turkey and Pakistan”.
Swamy subsequently obtained a stay on the summons issued to him to appear before the court at Karimganj.
Prayers (a) and (b) in his writ petition refer to his challenge to the constitutional validity of sections 153(a) and 295(a) (see below), which he claims, are vaguely worded and are prone to be abused, like section 66A of the Information Technology Act, which was read down by the Supreme Court in Shreya Singhal case.
Swamy contends that there has to be a distinction between the incitement or advocacy and the expression of opinion.
Today, as the case came up as item no. 38 before the bench at court no 2 for the first time, the Solicitor General, Ranjit Kumar said as high courts are equally constitutional courts, let Swamy first try his luck before the high courts in Assam and Delhi where the cases against him are pending.
Swamy then accused the SG for misinterpreting his stand, and the Supreme Court’s order passed by the previous bench in the case on 2 July last year.
To this, the SG took strong objections.
Swamy then alleged that the courts in Assam and Delhi issued non-bailable warrants against him in the case without taking complaint on oath, which is a violation of the Cr.PC
Swamy then asked the bench, how many high courts he has to go for relief, as FIRs against his reported remarks are filed all over the country. The matter he said, involves his fundamental rights.
Justice Dave then asked Swamy to amend his petition and challenge the validity of these provisions in the high courts. “It is in your favour, as you will have one more judicial remedy by coming here, if you happen to lose in the high courts”, justice Dave told Swamy.
Swamy then referred to the recent speech of President Pranab Mukherjee that all colonial-era laws must be reexamined, and said, therefore, the Supreme Court should not shy away from using this opportunity to test these provisions.
Swamy alleged that the FIRs against him are chilling the national debate, and that people in power file FIRs to silence him. “Should my Fundamental rights be restricted on this basis?”, he asked.
Sensing the reluctance of the bench to go ahead in the case, Swamy then asked it to post it before the same bench led by justice Gogoi which heard the matter earlier, and issued notice.
To this, Justice Dave said the roster has changed in the meantime.
The SG said this is not a PIL, and if his prayer is not granted, he can amend the petition before the high court.
Finding that Swamy is not likely to budge, the bench then agreed to list it again in July, and hoped that Swamy could think over his options in the mean time.
Section 153A of the IPC:
Promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony.—
(1) Whoever—
(a) by words, either spoken or written, or by signs or by visible representations or otherwise, promotes or attempts to promote, on grounds of religion, race, place of birth, residence, language, caste or community or any other ground whatsoever, disharmony or feelings of enmity, hatred or ill-will between different religious, racial, language or regional groups or castes or communities, or
(b) commits any act which is prejudicial to the maintenance of harmony between different religious, racial, language or regional groups or castes or communities, and which disturbs or is likely to disturb the public tranquillity, 2[or] 2[(c) organizes any exercise, movement, drill or other similar activity intending that the participants in such activity shall use or be trained to use criminal force or violence or knowing it to be likely that the participants in such activity will use or be trained to use criminal force or violence, or participates in such activity intending to use or be trained to use criminal force or violence or knowing it to be likely that the participants in such activity will use or be trained to use criminal force or violence, against any religious, racial, language or regional group or caste or community and such activity for any reason whatsoever causes or is likely to cause fear or alarm or a feeling of insecurity amongst members of such religious, racial, language or regional group or caste or community,] shall be punished with imprisonment which may extend to three years, or with fine, or with both. Offence committed in place of worship, etc.—
(2) Whoever commits an offence specified in sub-section (1) in any place of worship or in any assembly engaged in the performance of religious worship or religious ceremonies, shall be punished with imprisonment which may extend to five years and shall also be liable to fine.]
Section 295A IPC:
Deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs.—Whoever, with deliberate and malicious intention of outraging the religious feelings of any class of 273 [citizens of India], 274 [by words, either spoken or written, or by signs or by visible representations or otherwise], insults or attempts to insult the religion or the religious beliefs of that class, shall be punished with imprisonment of either description for a term which may extend to [three years], or with fine, or with both.]