After a hearing on Wednesday, 26 February, which saw some powerful exchanges between him and Solicitor General Tushar Mehta, Justice S Muralidhar will no longer be hearing the petition filed by Harsh Mander, which has asked for FIRs to be registered against three BJP leaders whose provocative speeches are alleged to have played a role in the ongoing violence in Delhi.
While Justices Muralidhar and Talwant Singh had orally said the case was to be listed before them again at 2:15 pm on Thursday, 27 February, the new causelist shows that the matter has been listed before Delhi High Court Chief Justice DN Patel, instead of them.
The reversion of the case to the chief justice’s court appears to be in accordance with procedure, several advocates like Gautam Bhatia have pointed out on social media. Justice Muralidhar heard the case in place of the chief justice because of its urgency, but the case was not transferred to his court.
It technically remains listed before the chief justice as a result, especially as the text of the court order on Wednesday simply says “List on” rather than mentioning which court it should be placed before.
Mander’s petition was originally scheduled to be heard by Chief Justice DN Patel on an urgent basis on Wednesday. However, he was not present in court for the day, and nor was the next senior-most judge, Justice GS Sistani.
As a result, Mander’s lawyer, senior advocate Colin Gonsalves, mentioned the matter before Justice Muralidhar on Wednesday morning, as he was the most senior judge of the court present.
As the petition had been marked as urgent, Justice Muralidhar agreed to hear it, and issued notice to the Delhi authorities.
The matter was listed for 12:30 pm, and what followed was a remarkable hearing, where he and Justice Talwant Singh asked tough questions of the Solicitor General and the Delhi Police.
Failure of Police to Assess Provocative Videos Called Out
The first instance of this came after Solicitor General Tushar Mehta argued that there was no urgent need to hear the petition, especially its request for registration of FIRs against BJP leaders Kapil Mishra, Parvesh Verma and Anurag Thakur, for their now notorious inflammatory speeches.
Mehta said he had not seen the videos of the controversial speeches, and to the judges’ surprise, the DCP (Crime Branch) Rajesh Deo, said he had not either.
Following this, the judges gave Mehta and the police till 2:30 pm to take a view on whether Mishra’s speech was provocative and warranted the registration of an FIR.
‘Anguish, not Anger’
After the matter resumed, Mander’s lawyer Colin Gonsalves presented arguments on why the court should order FIRs against the BJP leaders.
The Solicitor General then cried foul about Mander’s petition, asking how he had selected just these three supposedly provocative speeches. He said there were many inflammatory speeches made by other people as well, which also disclosed cognisable offences, and so Mander needed to explain why he had only singled out these petitions.
“What you are saying shows the police in even worse light,” Justice Muralidhar pointed out. “You are saying the police not only failed to take action in these three clips but many more clips as well!”
Mehta responded that the police was considering what to do, and that an FIR would be registered “at an appropriate stage.” To this, Justice Muralidhar asked “What is the appropriate stage? After the city has burnt down?”
He said that the court had a duty to protect the life and liberty of citizens., and that “as a constitutional court, we cannot be blind.” This was why, he argued, the court needed to go into the question of whether the FIRs should be registered or not, given the loss of lives in Delhi. “How many more lives must be lost?”
Mehta reiterated that the police was looking into it all, and could register the FIR when the situation was ‘conducive’ to do so.
“If you fail to take action, that conducive situation will not emerge,” Justice Muralidhar countered. In response to Mehta’s protestations that the judge was getting angry with him, he replied that the court was not demonstrating anger but anguish. “I hope this anguish is acknowledged, Mr Mehta,” he added.
“We do not need a repeat of 1984,” the judge asserted, reiterating a sentiment he’d expressed at the previous emergency services case as well.
Following a brief interaction with DCP (Crime Branch) Rajesh Deo over the FIRs already registered in relation to the Delhi violence, the court then asked them to take the advice of Solicitor General Mehta and make a “conscious decision” about why they should or should not register cases against the BJP leaders and any others who had made inflammatory speeches.
Source: The Quint