In a case related to hate and Islamophobic speeches connected to the northeast Delhi pogrom, the Delhi High Court Friday 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 further 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, Indian Express reported.
The court was hearing a 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 hate speeches against Muslims was declined.
CPI(M) leader Brinda Karat is the petitioner. Karat’s plea refers to various speeches made by the two BJP politicians including the speech dated January 27, 2020 given by Anurag Thakur at a rally shouting the slogan “desh ke gaddaron ko, goli maaron saalon ko”.
“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,” Indian Express quotes the court as observing.
The court went on to say: “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.”
Court said: “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.”
Advocate Adit Pujari, representing the petitioner, said whether it is election or no election, there is “some kind of instigation” in the speeches of BJP leaders.
The court said that it was making the observations in general and not particularly in reference to the case, Indian Express reported.
The court on Friday reserved its judgment on Karat’s petition.
The Delhi pogrom is widely acknowledged to have been sparked by incendiary comments made by Anurag Thakur, Parvesh Verma and Kapil Mishra, BJP leaders, about Muslims peacefully protesting against ‘anti-Muslim and unconstitutional’ citizenship law. Video evidence and witness accounts pointed to police allowing Hindu mobs to roam the streets freely to target the Muslim community.
While no action has been taken against Kapil Mishra and other BJP politicians to date, the arrests of Muslim students and activists who were active in anti-Citizenship Amendment Act (CAA) protests are being seen by rights activists and opposition leaders as part of the Delhi police’s witchhunt of anti-CAA activists.
