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Justice Chandra D. Singh indicates hate speech with a smile is not a crime

IndiaJustice Chandra D. Singh indicates hate speech with a smile is not a crime

Justice Chandra Dhari Singh of Delhi High Court said that if something is said with a smile, there is no criminality.

Justice Chandra Dhari Singh went on to say that if something is said offensively, then there may be criminality.  In other words, hate speech if said with a smile is not a crime, says Delhi HC.

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 contended 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 crimes being made out.

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.

In a case linked to alleged hate speeches related to the Northeast Delhi riots, the Delhi High Court Friday stated 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.

“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 an ordinary course, then it is instigating something. In the election speech, so many things are said by politicians to politicians… that is also wrong but I have to see the criminality of the act,” said Justice Chandra Dhari Singh.

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 relation to a proposal 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 an election or no election, there is “some kind of instigation” in the statements.

Justice Chandra Dhari Singh 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, 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 an investigation”.

It was also argued that dismissal of the complaint about 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 the investigation,” the petition reads.

Smile or no smile, seeds of hate in the heart is the beginning of a genocidal start.  History has taught us the pattern.  It is a noted fact that psychopathic killers often murder their victims while laughing, sadists often speak the cruellest words while smiling and some of the worst sociopaths inflict injurious words with beaming faces.

Today in India, we see mad mobs suddenly erupt with fumes of genocidal hate speech that court judges did not feel worthy to qualify as crime ignoring the fact that genocide did not start in the gas chambers, it started with seeds of hate breeding in fanaticized hearts that guttered out hate speech.

Events Leading to the Delhi Riots of February 23, 2020

Thakur, a Member of Parliament from Hamirpur in Himachal Pradesh campaigning for his party for Delhi Assembly elections in Rithala chanted a provocative slogan on February 8, 2020: “Desh ke Gaddaron ko, goli maaron saalon ko”. The rough English translation is “shoot the traitors”.

The Election Commission of India (ECI) had imposed a 72-hour ban on him and put him off the star campaigner list of the BJP.

The ECI discerned Thakur violated the model code of conduct and the Representatives of People’s Act – the election law – by making a controversial statement, which political opponents allege, are divisive and communally aggressive.

In his explanation, Thakur had told the ECI that the slogan attributed to him was never uttered by the Union minister and that there was no intention on his part to “create or promote enmity between religious groups, caste or community”. It was the crowd that responded with the remark “goli maron saalon ko” to his slogan “Desh ke gaddaro ko…”, “which literally means the traitor of the country,” he said.

Rejecting the response, ECI concluded that Thakur made “undesirable and objectionable statements, which has the tone and tenor to aggravate differences or create mutual hatred between different religious groups”.

Ahead of the Assembly elections on February 8, the Opposition leaders had said that such provocative speeches resulted in incidents like firing at protesters near Jamia Millia Islamia University who were demonstrating against the Citizenship (Amendment) Act or CAA.

The incident took place as hundreds of students were gathering for a march to Raj Ghat on the death anniversary of Mahatma Gandhi (on January 30) as part of an anti-CAA protest. At around 1.30 pm, multiple eyewitnesses said that the teenager was spotted walking towards the students, brandishing a gold-coloured countrymade pistol and shouting provocative slogans. He also fired a shot, injuring a Jamia student.

The minor attacker appeared before the Juvenile Justice Board (JJB), which sent the 17-year-old to 28-day protective custody.

Later on in the same month, on 23 February 2020, a leader of the ruling Hindu nationalist Bharatiya Janata Party (BJP), Kapil Mishra, called for Delhi Police to clear the roads, failing which he threatened to “hit the streets.  This allegedly trigged the Delhi Riots.

The riots started in Jaffrabad, in North East Delhi, where a sit-in by women against India’s Citizenship (Amendment) Act, 2019 had been in progress on a stretch of the Seelampur–Jaffrabad–Maujpur road, blocking it and Kapil Mishra asked his crowd to hit the streets.

Words and hate speech have to power to inflict death. The 2020 Delhi riots saw surges of violence, burning of houses,  property destruction, rioting and worst of all, bloodshed beginning on 23 February 2020 which continued raging for three days with no intervention from police or government.

It was caused chiefly by Hindu groups attacking Muslims.  Of the 53 people killed, 2 were unidentified 36 Muslims and 15 were Hindus.

After Kapil Mishra called for Delhi Police to vacate the roads, failing which he threatened to “hit the streets”, violence flared.  Initially, Hindu and Muslim attacks were equally fierce.  Most deaths were attributed to gunfire. By 25 February 2020, things changed.  Rioters wearing helmets and carrying sticks, stones, swords or pistols, carrying saffron flags of Hindu nationalism entered Muslim neighbourhoods with chants of”Jai Shri Ram” (“Victory to Lord Rama”), a religious slogan favoured by prime minister Narendra Modi’s party.

The police stood silently and watched while in the neighbourhood of Shiv Vihar, groups of Hindu men attacked Muslim houses and businesses for three days, often firebombing them with cooking gas cylinders and eviscerating them amid the presence of the hushed abetting police.

In some cases, Muslims fought back and on the 25th a Muslim band approached a Hindu neighbourhood throwing stones and Molotov cocktails and firing guns.   During this time, stories were also told of Sikhs and Hindus coming to the aid of encircled Muslims.  In some neighbourhoods, the religious communities cooperated in protecting themselves from violence.

After more than a week after the violence had ended, thousands of Muslims were displaced, hundreds wounded were languishing in poorly staffed medical facilities and corpses were being found in open drains. By mid-March, many Muslims were missing.  In all this, it is very worrisome when a judge in high court downplays the hate speech of Thakur and Verma because one knows in most cases, inflamed speeches proceeded genocide.  After those smiles and speeches at the beginning of February, the Delhi Riots erupted at the end of February, or could they not connect the dots?

You might also want to read https://hamslivenews.com/2021/11/05/protests-against-namaz-in-gurugram-plain-hatred-to-muslims-says-owaisi/

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