Hate speech: No criminality if said with smile, says HC over case on BJP leaders

The Delhi high court made these remarks while hearing a petition seeking an FIR against BJP leaders for hate speeches related to anti-CAA protests at Shaheen Bagh.

New Delhi: The Delhi high court on Friday questioned CPI(M) leader Brinda Karat over her plea seeking a First Information Report (FIR) on Bharatiya Janata Party over their hate speeches in relation to anti-CAA protest at Shaheen Bagh.

The HC dismissed Karat’s plea that challenged a trial court’s order dated August 26, 2021, that dismissed her plea seeking an FIR against BJP leaders Anurag Thakur and his BJP colleague and MP Pravesh Verma for allegedly giving speeches that disrupt communal harmony and incite violence.

“‘Ye log’ (these people) indicates to whom? How can you translate that ‘ye log’ means that particular community? It is not to any particular community, they can be anybody. Where is direct instigation?” news agency PTI quoted Justice Chandra Dhari Singh,

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“Where is the communal intent in the speech?” he added.

A trial court had earlier dismissed her plea on the grounds that the requisite sanction from the competent authority, the Central government, was not obtained which was required under the law.

The high court, after hearing arguments from the counsel for Karat and Delhi Police reserved its order on the plea.

The court also questioned the petitioners’ counsel asking if the speeches in question were made during the election time. While Adit S Pujari, the counsel for the petitioner, confirmed that the said speeches were made during the election period of January to February 2020, the court sought to investigate its criminality.

It said that if the speeches were given with an intent to offend, then it is a “wrong thing”. However, if it was said with a “smile then there is no criminality”, it added.

“Was that an election speech or speech during the ordinary time? Because if any speech is given during election time then it’s a different time, if you’re giving a speech in an ordinary course, then you’re instigating something. In the election speech, so many things are said by the politicians to politicians and that is also a wrong thing. But I have to see the criminality of the act. If you’re saying something with a smile then there is no criminality, if you’re saying something offensive then definitely. You have to check and balance. Otherwise, I think 1,000 FIRs may be lodged against all politicians during elections,” Live Law quoted the panel as saying.

“You are also adjudicating the right to speech and all these things, lot of things against two individuals or group of individuals, that is a different thing. But when and what time, that was delivered and what was the intention. Only intention to win the election or intention to instigate the public to do the crime are different things. Then you have to see the mens rea,” it added.

Advocates of the petitioner, Tara Narula and Adit S Pujari, said that they were only asking for an FIR and a police investigation to be initiated against the BJP leaders for their alleged hate speeches at Shaheen Bagh.

The counsel had earlier said that the magistrate had rejected the plea on the ground of lack of sanction and did not even go into the merits of the case.

CPI (M) leaders Brinda Karat and KM Tewari had filed the complaint before the trial court seeking a direction to the Parliament Street Police Station to register an FIR against Thakur and Verma.

Karat in her complaint had claimed that Thakur and Verma had sought to incite people as a result of which three incidents of firing took place at two different protest sites in Delhi.

She sought lodging of FIRs under various sections including 153-A (promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc.), 153-B (imputations, assertions prejudicial to national-integration) and 295-A (deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs) of the IPC.

It had also sought action under other sections of the IPC, including 298 (uttering, words, etc., with deliberate intent to wound the religious feelings of any person), 504 (intentional insult with intent to provoke breach of the peace), 505 (statements conducing to public mischief) and 506 (punishment for criminal intimidation).

The maximum punishment for the offences is jail term for seven years.

The CPI (M) leader had mentioned that at the Rithala rally here, Thakur, the minister of state for finance and corporate affairs, had on January 27, 2020 egged on the crowd to raise an incendiary slogan to shoot the traitors (desh ke gaddaron ko, goli maaron saalon ko) after lashing out at anti-CAA protesters.

In the complaint, she had mentioned that Verma had on January 28, 2020, allegedly made incendiary comments against the anti-CAA protesters in Shaheen Bagh.

(With inputs from PTI and Live Law)

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