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Hate speech case: If said with smile, no criminality, says Delhi HC – The Indian Express

In a case related to alleged hate speeches connected to the Northeast Delhi riots, the Delhi High Court Friday said that a speech given during election time is different from one given during ordinary times and sometimes things are said just to create a ‘mahaul’ (atmosphere) without there being the intention.
Justice Chandra Dhari Singh observed that if something is said with a smile, then there is no criminality but if something is said offensively, then there may be criminality. The court was hearing CPI(M) leader Brinda Karat’s petition against a lower court order in which the prayer for registration of FIR against Union Minister Anurag Thakur and MP Parvesh Verma for their alleged hate speech was declined.
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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.
It added that otherwise thousands of FIRs may be lodged against all politicians during elections: “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.
In reference to a submission pertaining to Verma’s statement, in which he had allegedly said “ye log aapke gharon mein ghusenge aapki betiyun ko uthainge aur unko rape karenge…”, the court asked who ‘yeh loug’ indicates in it and how petitioners were concluding that it referred to the particular community. Advocate Adit Pujari, representing the petitioner, argued that it was made in the context of Shaheen Bagh.
The court also asked if only one particular community was in the protest. “Where is that material? Because if you’re saying that protest is only for one particular community and another community is not supporting the agitation, are you suggesting that?” asked the court, while questioning if that agitation was supported by all other citizens of this country, how the petitioners can contend that the speech was directed towards only one community.
Pujari responded that whether it is election or no election, there is “some kind of instigation” in the statements.
The court said that it was making the observations in general and not particularly in reference to the case. “Suppose you have said something just for creating mahaul (atmosphere) and all this, I think there is no mens rea because some other political parties say something else. Everybody is addressing their constituencies and mobilising their constituents. That speech has been done for the purpose of mobilising the constituency,” it added.
The court on Friday reserved its judgment on Karat’s petition. Police had earlier defended the lower court’s decision.
The lower court on August 26, 2020, had dismissed the complaint filed by Karat and CPI(M) leader KM Tewari in February 2020 for registration of FIR against Thakur and Verma for their alleged hate speech in relation to the anti-CAA protests. It was argued before the High Court in the petition that the complaint was filed over 9 months ago and the registration of FIR is already extremely delayed despite cognizable offences being made out.
The lower court, while dismissing the complaint, had said the complainants had not obtained the previous sanction from the competent authority to prosecute Thakur and Verma under sections 153A, 153B, 295A, 298, 504, 505 and 506 IPC. As per Section 196 CrPC, prior sanction from the state is required for prosecution of offences punishable under Section 153A, 153B, 295A and 505 of IPC.
In the petition filed through advocate Tara Narula, it was also argued that if the order passed by lower court is permitted to stand, no application under CrPC Section 156(3) – which empowers a magistrate to order an investigation into a cognizable offence – would be maintainable before any court, in respect of offences for which sanction is required to be taken prior to cognizance.

The petition stated, “The petitioners/complainants, already aggrieved by the failure of police to register an FIR for the commission of cognizable offences amounting to hate speech, have now been relegated by the Ld. ACMM to seek sanction from the State/Centre, a sanction which is a statutory requirement for taking cognisance, not investigation”.
It was also contended that dismissal of the complaint for lack of sanction means asking the complainant to step into the shoes of the investigating agency and make a case for prosecution before the sanctioning agency. “Any application for sanction by the complainant at this stage would be without the benefit of materials and evidence obtained during investigation,” the petition reads.
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