Hate speech case: No criminality if something said with a smile, says Delhi HC

The Delhi High Court while hearing a case related to alleged hate speeches, has observed that there is no criminality if you are saying something with a smile.

On Friday, March 25, the court was hearing CPI(M) leader Brinda Karat’s plea challenging a trial court’s August 26, 2020 order dismissing her plea seeking lodging of FIR against Union Minister Anurag Thakur and his BJP colleague and MP Pravesh Verma on the ground that the requisite sanction from the competent authority, the central government, was not obtained which was required under the law.

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Karat had sought lodging of FIR against the two BJP leaders for their alleged hate speeches connected to the Northeast Delhi riots.

The HC sought to know from Karat what was communal in the speeches delivered by Thakur and Verma.

‘Where is direct instigation?’

“‘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?” Justice Chandra Dhari Singh said. He added, “Where is the communal intent in the speech?”

The court said that speeches made during election time were different from ordinary time.

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“Were they election speeches? Was that an election speech or speech in ordinary time? If any speech is given during election time, then it’s a different thing. If you’re giving a speech in the ordinary course, then it is instigating something. In the election speech, so many things are said by politicians to politicians… that is also a wrong but I have to see the criminality of the act,” said the court, Indian Express reported.

“If you’re saying something with a smile then there is no criminality, if you’re saying something offensively then criminality. You have to check and balance. Otherwise, I think 1,000 FIRs may be lodged against all politicians during elections.

“Because we are also in democratic … you also have the right to speech and all these things. When and at what time that speech was delivered and what was the intention? Only intention to win the election or intention to instigate the public to do the crime. Both are two different things, then we have to (apply) mens rea,” said the bench.

Order reserved

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

Advocate Amit Mahajan, representing Delhi Police, said the trial court has rightly held that it does not have jurisdiction to deal with the case and referred to the Supreme Court’s judgments which hold that if a judge is saying he does not have jurisdiction, he should not comment on merits and that is the right approach.

Advocate Tara Narula and Adit S Pujari, representing Karat, submitted that a cognisable offence is made out against the two leaders and FIR should be lodged against them for their alleged hate speeches in relation to anti-CAA protest at Shaheen Bagh in Delhi and that they were only asking the police to investigate the matter.

(With inputs from PTI)