Delhi hate speech row: If said with smile, no criminality, observes High Court

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The Delhi High Court bench on March 25 said that speech given during election time is different from one given during ordinary times and compared it with creating a 'mahaul' (atmosphere) without there being the intention.

Justice Chandra Dhari Singh, while hearing a petition filed by CPI(M) leader Brinda Karat against alleged hate speeches connected to the Northeast Delhi riots, observed, '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 the petition which was declined by the lower court against alleged hate speeches made by Union Minister Anurag Thakur and BJP MP Parvesh Verma.

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“Were they election speeches? Was that an election speech or speech in ordinary times? 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,” Indian Express quoted the court statement.

Adding that thousands of such FIRs may be lodged against all politicians during elections, the court said, "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."

The bench further said, "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) men's rea."

Later the court reserved its judgment on Karat’s petition. The Police had earlier defended the lower court’s decision, which 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.