Lawyers, activists say spewing hatred is a serious infraction under Constitution

By Abdul Bari Masoud

The Delhi High Court on March 25 reserved its decision on a plea filed by CPI (M) leaders Brinda Karat and KM Tewari seeking the registration of an FIR against Union Minister Anurag Thakur and BJP MP Parvesh Verma for allegedly using hate speeches against the anti-CAA protesters in January 2020 ahead of Delhi assembly election.

During the hearing, however, Justice Chandra Dhari Singh’s remark that “if something is spoken with a grin, there is no criminality” did not go down well in the legal fraternity as well as in other sections of the society.

They noted that the observation is like putting salt on the wounds of a victim of communally targeted hate violence, describing hate speech as a serious infraction under the Constitution of India.

While hearing the case,  Justice  Singh said  a speech delivered during election season is different from one given at other times, and that occasionally things are said only to create a mahaul (environment) without there being the intention.

The court stated that the observations were made in general and not specifically in relation to the case. “If you said something just for the sake of establishing mahaul (atmosphere) and all that, I believe there is no mens rea because other political parties say something else.” Everyone is speaking to their audiences and mobilising their supporters. “That speech was given in order to mobilise the constituency,” it continued.

“Was that an election speech or speech in ordinary time? If any speech is given during an election, then it’s a different thing. If you’re giving a speech in the ordinary course, then it is instigating something,” said the judge, adding, “If you’re saying something with a smile then there is no criminality, if you’re saying something offensively, then criminality.”

“Because we are also in democratic…you also have the right to speech and all these things…,” Justice Singh said.

Taking strong notice of these remarks, Human Rights activist Advocate N D Pancholi said the Delhi High Court was wrong in saying that speeches given during elections are different from those made during ordinary times as politicians try to create an atmosphere in their rallies without having any particular intention.

Speaking with Radiance, Advocate Pancholi underlined the legal clauses (Section 153 A and Section 505 of Indian Penal code) which do not say that there should be criminal intent in making hate speech.

“Hate speech is hate speech whether it is made during an election or at any other occasion. Section 153-A of IPC says that whoever by words spoken or written promotes or attempts to promote disharmony or feelings of ill will on grounds of religion or race etc shall be punished with imprisonment which may extend to three years or with fine or both. The Section does not make any distinction whether words are spoken with a smile and without intention.”

It is clear that the words spoken by the said two leaders promote feelings of disharmony and ill will among communities. It is unfortunate that the Delhi High Court has given a wrong order, observed Pancholi.

In response to a submission regarding Verma’s statement, in which he reportedly claimed “ye log aapke gharon mein ghusenge, aapki betiyun ko uthainge aur unko rape karenge…”, the court inquired as to what “ye log aapke gharon mein ghusenge aapki betiyun ko…” The petitioner’s lawyer, Adit Pujari, maintained that it was made in the context of Shaheen Bagh.

Noted activist Shabnam Hashmi said the judgment is highly problematic. This is absolutely unprecedented to take such a heinous hate speech so lightly. These kinds of observations from judicial officers will further embolden the criminals and hate-mongers.

Writer and activist John Dayal sees latent communalism in it.

“It is a nauseating mixture that is created when latent communalism in a judicial officer mixes with a lame effort at levity. This rubbing of salt on the wounds of a victim of communally targeted hate is exactly what would appear to be the case with a judge ruling that no action is warranted because the person making the statement had said with a smile on his face,” Dayal, who is also former secretary general of Christian Council and former president of all India Catholic Union, told Radiance.

In targeted communal violence, majoritarianism seems to be the guiding principle. Perhaps this phenomenon could be named after former Chief Justice of India and now member of the Rajya Sabha, Gogoi. The Gogoi principle sounds pompously academic, Dayal added.

It is not surprising that the Delhi High Court Chief Justice has taken no notice of it, nor has the Chief Justice of the Supreme Court of India.

He cited many examples of this phenomenon.

“The punishment bail refused to religious minorities even when they have been targeted on fake charges, is a case in point. More in the news have been bail refusals in UAPA and similar cases. While one victim, Fr Stan Swami died a prisoner of the state while judges mindlessly and heartlessly rejected his bail applications on medical grounds [Prof Saibaba, a paraplegic, is another case], Umar Khalid is being made an example of with his petitions for release on bail in a totally fabricated case are rejected summarily.”

“In recent judicial history there are only a very few cases of aberrant judgments which have been castigated by High Courts or the Supreme Court. A more salutary case was of a judge in Bombay who shocked women as well as men in the country by ruling that no sexual offence of rape or attempted rape was made out if “skin does not touch skin. The judge was not confirmed,” Dayal said.

He also pointed out that “Matrimonial and religiously targeted cases are where Indian lower judiciary and sometimes even high court judges err the most.

On gender cases, many a judge in Tamil Nadu or the northern states has been lenient on rapists because they offered to marry the victim of their heinous crimes.”

Echoing his sentiments, Capt. Praveen Davar, ex Member of National Commission for Minorities and former Secretary AICC, said in the given hate-filled situation in the country, the judiciary should be proactive as hate speech is a serious offence under the Constitution of India.

The framers of the Constitution had realised that one of the primary reasons for the division of the country was the hate speeches by those who wanted, and succeeded in dividing the country, Capt. Davar told Radiance.

“All over the world there are innumerable instances of hate speech, intolerance and anger being the root causes of many avoidable disputes and bad blood in both national and international affairs. If the Centre and State governments are vigilant and carry out their responsibilities impartially, issues can be resolved without approaching the courts. It is only when the governments don’t act responsibly that matters have to go before the courts.”

In an oblique reference to the present government’s condoning attitude towards hate crimes, he warned: “There can be no greater injustice to a cause if issues are decided by the Judiciary under the influence of the Executive.”

It is to mention that the lower court dismissed the case on August 26, 2020. The police had defended the Lower Court’s ruling. It was challenged in the High Court.

In the case, it was stated before the High Court that the complaint was filed over 9 months ago and that the registration of the FIR is already exceedingly slow, despite the fact that cognizable offences were established.

The lower court dismissed the petition on the ground that the complainants had not acquired prior approval from the competent authorities to prosecute Thakur and Verma under Sections 153A, 153B, 295A, 298, 504, 505, and 506 of the Indian Penal Code. Prior state sanction is required for prosecution of offences punishable under Sections 153A, 153B, 295A, and 505 of the IPC, according to Section 196 CrPC.  Under these sections, the maximum punishment for these offences is a seven years jail term.

Karat had gone to the court after her written complaints against Thakur and Verma to the Commissioner of Police and the Parliament Street station house officer had gone unanswered.

Ahead of Delhi Assembly election, Thakur was seen leading a throng with the slogan “Desh ke ghaddaron ko, goli maaro saalon ko” at  the Rithala rally in Delhi on January 27, 2020. He egged on the audience to chant an incendiary slogan, ‘shoot the traitors’ and Union Home Minister Amit Shah was also present at the rally.

While Verma had referred to the demonstrators in Shaheen Bagh as “rapists and murderers,” and urged that the people of Delhi should act now (by voting for the BJP), otherwise Prime Minister Narendra Modi and Home Minister Amit Shah “would not help them later.”

Prashant Kumar, a journalist, had also tweeted the footage of this rally.

These inflammatory speeches triggered the worst anti- Muslim violence in the north-eastern area of Delhi in February 2020 which claimed 53 lives mostly Muslims and over 200 were injured, many of them suffered serious injuries.

Thakur and Verma were also issued notices by the Election Commission for their inflammatory remarks made at two election rallies in Delhi.

The petitioner, Brinda Karat, a former MP and Polit Bureau member, told Radiance, “We can’t say anything right now since the court has reserved the ruling, and we’ll see what happens once it is handed down.”

“There is no doubt that a decision is not final till it is declared so by the Apex  Court, but meanwhile the gravity of a crime is diminished. Justice delayed is Justice denied. Hence those dispensing Justice must do so impartially, efficiently and fearlessly,”  Capt. Davar summed up.

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