Syed Khalique Ahmed
NEW DELHI—Delhi High Court judge Justice Chandra Dhari Singh has claimed that “if you are saying something with a smile then there is no criminality, but if you are saying something offensively, then there may be criminality.”
The Indian Express reported the court’s observation in its edition dated March 26, 2022, titled “Hate speech case: If said with a smile, no criminality, says HC.”
The court also asked, “Was that an election speech or speech in ordinary time? If any speech is given during an election, then it is a different thing. If you are giving a speech in the ordinary course, then it is instigating somebody.” If interpreted, a hate speech will not amount to an offence during election time. Does this amount to giving licenses to politicians or anybody else to make hate speeches during election time?
Was the observation of Justice Singh his personal opinion because there is no such relaxation allowed in the Indian Penal Code? IPC does not distinguish between hate speech made with a smile or without a smile, during the election period or during ordinary times. Hate speech is hate speech and amounts to a crime. Then why did Justice Singh pass such an observation? However, he made the comments orally, not in writing. However, he has reserved his verdict.
Justice Singh made his remark while hearing a case about hate speeches delivered by Union Minister Anurag Thakur and BJP MP Parvesh Verma during the Delhi assembly elections in January 2020. The court case was filed by CPI(M) leader Brinda Karat seeking registration of an FIR against the two for their alleged speeches in connection with the anti-CAA protest at Shaheen Bagh in Delhi.
Earlier, a lower court had declined Karat’s plea to pass an order for registration of a criminal case against the two BJP leaders for their hate speeches. On August 26, 2021, the lower dismissed Karat’s petition, saying that she had not taken prior sanction from the central government for seeking FIR against the two leaders required under the law.
Reacting to the judge’s remarks, senior advocate Prashant Bhushan tweeted, “By the same logic if a judge is called corrupt with a smile, there should be no contempt?”
Reacting to the judge’s comments appearing in The Indian Express, senior advocate Mahmood Pracha said that the newspaper had quoted the judge’s oral remarks, not from the written verdict, which was yet to be delivered. “In response to your hypothetical question, I can say that if the judge has said so, then this is incorrect. There is no difference in the hate speech made during elections or out of the election period. There is no relaxation under IPC to commit an offence during elections.”
In an election rally at Rithala in Delhi, Thakur had said, “Desh ke gaddaron ko, goli maro s- – lon ko”( shoot the traitors). His slogans were interpreted to be intended against Muslims who were opposing CAA.
Justice Singh questioned Karat’s lawyers on how they could interpret that the slogans were against a particular community. However, the judge said that it was not against any specific community, and there is no direct instigation and communal intent in the speech.
Earlier, a lower court had declined Karat’s plea to pass an order for registration of a criminal case against the two BJP leaders for their hate speeches.
Karat’s advocates-Tara Narula and Aditi S Pujari- told the high court bench that they were only demanding police investigation by registering FIR against the two leaders. They said that the magisterial court had rejected the petition because there was a lack of sanction from the authorities and did not go into the merits of the case. But advocate Amit Mahajan representing the Delhi police, said that the case was outside the jurisdiction of the magisterial court.
After hearing the arguments from both sides, the bench did not pronounce the judgment and kept it reserved.
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