New Delhi: Four orders passed on February 26, 2020, by division benches of the high court of Delhi presided by Justice S. Muralidhar on the issue of violence in the city have become an important anchor for relief efforts.
However, these orders arguably appear to have sparked concern for certain others given that the judge’s transfer to the Punjab and Haryana high court was notified late at night on February 26 without stipulating the customary two weeks for the judge to wrap up business.
Transfer orders for two other judges – Justice Malimath and Justice More – were also notified on February 26, but not Justice Subramonium Prasad who along with the aforementioned judges, was also recommended for transfer by the collegium on February 12.
What has caused such furore around these orders?
Role of the courts
Before going into each of the orders, it is necessary to clarify the role of the judiciary in our constitutional system.
The judiciary is one of three branches of government. Separation of powers is essential to democratic governance.
It sets up a system where no single branch of government – legislative, executive or judicial – is all powerful. Rather, each branch has defined powers and there are limits on each of these powers. The judiciary is tasked with interpreting the constitution and ensuring that the other two branches are performing their tasks in accordance with the provisions in it.
This is an integral part of the constitutional scheme of checks and balances.
One of the many constraints imposed by the constitution upon state action is that fundamental rights of all people in our country must be respected, protected and fulfilled. When the state fails to do this, constitutional courts are responsible for holding the state machinery accountable.
Rahul Roy v. GNCTD
When the Delhi high court, which is a constitutional court, was approached in the face of the gross denial of the right to life, its job was to ensure that the state was taking all necessary action to respect, protect and fulfil that right.
Given the urgency of the situation, a bench of Justice S. Muralidhar and Justice Anup Jairam Bhambhani was constituted past midnight on Tuesday (at 12:30 am on February 26) to respond to the humanitarian crisis at Al Hind Hospital in New Mustafabad.
A special hearing was conducted in the presence of the Alok Kumar, Joint Commissioner of Police, Rajesh Deo, DCP (Crime), and Sanjoy Ghose, Standing Counsel for the government of the NCT of Delhi and Delhi Police.
The Order dated 26.02.2020 in the case “Rahul Roy v. GNCTD” [later given the case number WP (Crl) No. 566 of 2020] explains that Dr. Anwar of Al Hind Hospital had reported over speaker phone that two people were dead and 22 people critically injured at the hospital and they needed police help for ambulances to have safe passage to and from the hospital since they lacked the facilities to treat the injured.
Dr. Anwar also said that he had been trying to seek police help since 4 pm but without success.
Medical services have a special status in human rights law. The Law of Armed Conflict under International Law requires that even in the time of armed conflict, there can be no interference with the ability of medical professionals to provide medical treatment to injured civilians. Article 21 of the Indian constitution guarantees the right to life to all persons in India. The Court, acting in furtherance of its duties to safeguard these rights, passed the following order:
The Court at this stage is primarily concerned with ensuring the safety of the lives fo the injured and immediate medical attention that they require and for that purpose to ensure the safe passage of the injured victims to the nearest available government hospitals.
The Court accordingly directs the Delhi Police to ensure such safe passage by deploying all the resources at its command and on the strength of this order to ensure that apart from the safe passage, the injured victims receive immediate emergency treatment, if not at the GTB Hospital, then at the LNJP Hospital or Maulana Azad or any other government hospital”
The matter was then directed to be listed before the same special bench at 2.15 pm for a status report of compliance to be reviewed and further action.
Harsh Mander v. GNCTD
Meanwhile, on the next morning, i.e., February 26, human rights lawyer Colin Gonsalves mentioned an urgent matter on behalf of petitioner Harsh Mander on the non-registration of an FIR in the face of the commission of the cognisable offence of hate speech under the Indian Penal Code.
Section 153A criminalises speech that instigates violence between groups. The petitioners alleged that hate speech had been made and that speech was responsible for instigating violence in Delhi.
This petition was originally listed in Court No. 1 presided over by the Chief Justice on February 26. However, Court No. 1 did not assemble and so the matter was mentioned before the senior most court in session on that day, i.e., the Bench comprising Justice Muralidhar J. and Justice Talwant Singh and was directed to be taken up for hearing at 12.30 pm after observing the sequence of events leading to the mentioning:
“A mention was made by Mr.Colin Gonsalves, learned Senior Counsel for the Petitioners that this petition was mentioned yesterday before the Bench of Justice G.S.Sistani, since Hon’ble Chief Justice was on leave.
The Court is informed that the matter was marked by Justice Sistani to the Bench of the Hon’ble Chief Justice for today and it is in fact listed before that Court today as Item 36.
However, the Court is also informed by the Registry that the Hon’ble Chief Justice will not be holding Court today. It is in these circumstances that Mr. Gonsalves requests that the matter be urgently taken up today itself. We may add that Justice Sistani is also on leave today.”
Harsh Mander v. GNCTD
When the case was taken up at 12.30 pm, the main issue urged was on the non-registration of FIRs despite the commission of the criminal offence of hate speech.
Law on registration of FIRs
An FIR is not a finding of fact about an incident.
It is merely a recording of the information received by the police that a cognisable offence has taken place. The FIR triggers an investigation into the allegations by the police who then collect material and evidence to ascertain the truthfulness of the allegations in the FIR and file a report.
Thus, the FIR is the critical first step that sets the police in motion and initiates investigation. The law on registration of FIRs was set down in a five judge Constitution Bench of the Supreme Court in Lalitha Kumari v. Union of India.
This position is that:
“Registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation.”
Lalitha Kumari further lays down that “action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence.”
Application of the law by the division bench
In the face of the blatant failure of the Delhi Police to act in accordance with the absolutely unequivocal requirement of law that an FIR is mandatory when information about the commission of cognisable offence is disclosed, the Court observed the following facts in its Order dated February 26:
- That four video clips were played in the Court.
- That the Solicitor General referred to certain other clips that he himself refers to as inflammatory and in respect of which no FIR has been registered.
- That the Solicitor General had submitted that it was not a “conducive time” to file FIRs.
- That the Solicitor General had submitted that it was not possible to state when the time would be conducive for registration of FIRs.
- That Praveen Rajan, Special CP, voluntarily stated that 11 FIRs had already been registered in relation to deaths, destruction of property and injuries to people in the last three days.
In light of this position, the Court made the following observation which is reproduced in original:
“The police should be guided by the judgement of the Constitution Bench of the Supreme Court in Lalita Kumar v. Government of Uttar Pradesh (2014) 2 SCC 1 and go strictly by the mandate of the law.
It should seriously consider the consequences that would ensue with every day’s delay in registering FIRs not only on the basis of the video clips that have been played in Court but all other video clips of speeches/actions by anyone, whosoever it may be which disclose ex facie the commission of an offence, bearing in mind that the rule of law is supreme and that no one is above the law.”
The court then recorded the statement of Praveen Ranjan:
“Mr Ranjan Special CP assures the court that he will himself sit with the CP today itself and view all the videos, not limited to the videos played in the Court but any other videos that might be provided to them and which they perhaps already as in possession of and take a conscious decision which will be communicated to the Court tomorrow itself.”
From this order it is clear that the court merely did its job of reminding the state agencies of the law and the fact that they are bound by the law and recorded the assurance of the Delhi Police that they would review all videos that are either given to them or that they find that discloses any hate speech by anyone and they would take conscious action keeping in mind the requirement of the law.
Rahul Roy v. GNCTD
At 2.15 pm, the special bench of Justice Muralidhar and Justice Anup Jairam Bhambhani that had assembled at midnight to respond to the humanitarian crisis at the hospital, reconvened to review the situation.
The second order dated 26.02.2020 in this case records that the counsel for the petitioner submitted positive news that the patients had reached government hospitals and were being given treatment, and, that many more injured victims had been rescued after the midnight order was passed. Accordingly, the court placed on record “its appreciation of the promptness with which Delhi Police responded to the distress call of the Petitioner through this petition which has resulted in a critical situation being tackled with the cooperation of everyone.”
Standing counsel for the Delhi Police and for the government of NCT of Delhi, Rahul Mehra and Sanjay Ghose, submitted that certain issues still required immediate attention.
These included the safe passage for the bodies of victims who died in the riots, setting up of help lines and help desks, safe passage of fire services and ambulances, and displacement of victims of the riot from their homes. On the last issue in particular, the court passed extensive orders required the setting up of shelters, food, drinking water, medicines, blankets, bedding for the victims.
Other issues that were raised and addressed were the notification of night magistrates to respond to urgent situations, appointment of an amicus curiae to coordinate between victims and various agencies, the designation of legal aid lawyers at the Delhi Legal Services Authorities to respond to the needs of riot victims, and, the provision of trauma care by the Institute of Human Behaviour and Allied Sciences.
Rule of law
The right to life under Article 21 necessitates that a constitutional court takes action to protect the lives of people in India.
The two orders passed for the immediate and urgent relief to victims of the riots in the case of Rahul Roy v. GNCTD admittedly saved the lives of people who are severely injured and have been displaced from their homes.
The second order in Harsh Mander v. GNCTD reminds the Delhi Police of the mandatory requirement for registration of FIRs in the event of the commission of a non-cognisable offence and observes the assurance of the Special CP that he will review all videos by any person that disclose hate speech as defined under the law.
These orders are a minimum performance of the court’s duty to uphold the constitution. The real peculiar response in this situation is the action of the Solicitor General who, despite the clear position of law in the Lalitha Kumari case, insisted that an FIR is to be registered at a “conducive time”.
This is a novel proposition for a fundamental and basic tenet in criminal law – that an FIR is registered the moment information of the commission of a cognisable crime is made known to the police. The reluctance of the central government to initiate investigation into hate speech at the time of communal violence is a shocking abdication of its responsibility to ensure the life and liberty of its people is protected.